Employment Law FAQs
- What is the difference between the rights of an employee and those of a contract “gig” worker?
- What is the New York State Paid Family Leave?
- Are there certain questions that an employer may not ask during a job interview?
- When may an employee be entitled to medical leave from work?
- How can an employee secure a reasonable accommodation for his or her disability from an employer?
- How may an employer monitor employees in the workplace?
- When is harassment illegal?
- May an employer or supervisor play favorites among employees?
- What is considered working time under wage and hour laws?
- Is an employer limited in their ability to fire an employee?
- May an employer fire an employee and then ask the employee to sign a waiver of claims or severance agreement?
- What may an employer say about why an employee left or was fired?
What is the difference between the rights of an employee and those of a contract “gig” worker?
The “ABC” test is commonly used by courts and government agencies around the country to determine employee status. Under the ABC test, businesses that seek to treat workers as independent contractors or “gig” workers must show that the workers are: free from control and direction by the hiring company, perform work outside the usual course of business of the hiring entity, and are independently established in a trade, occupation, or business. A true independent contractor is someone who runs their own business, sets their own rates, builds a customer base, and takes on the risk of business failure. Most workers in the United States are not true independent contractors.
What is the New York State Paid Family Leave?
New York State Paid Family Leave guarantees workers time off to bond with a new child (including adopted and foster children); care for a seriously ill family member (child, parent, parent-in-law, spouse, domestic partner, grandchild, or grandparent); or address certain military family needs. Most employees who work in New York State (full or part time) are eligible to take Paid Family Leave. In 2021, an employee can take up to 12 weeks for family leave and can receive 67% of their average weekly pay while on leave. Employees are protected while on leave and have the right to return to work. If you receive healthcare coverage through your employer, you also have the right to keep your healthcare coverage under its current conditions, while on leave. Employees are eligible for the Paid Family Leave six months after their start date.
Are there certain questions that an employer may not ask during a job interview?
There are several types of questions that an employer is legally prohibited from asking in a job interview. For example, an employer may not seek medical information regarding an applicant, at least not before the applicant has received a conditional job offer. Questions that seek inappropriate medical information include: Are you disabled? How many sick days did you take last year? Have you ever made a workers’ compensation claim? And will you require any form of physical accommodation for this job? An employer may, however, describe the duties of a job to an applicant and ask if the applicant can perform those duties, either with or without reasonable accommodation. In addition, if the applicant clearly has a physical disability that would seem to prevent them from performing the relevant job duties, the employer may ask how the employee proposes to perform those duties.
In addition to medical inquiries, an employer may not ask an applicant about his or her race, national origin or religion, or about his or her family status or plans, such as whether a female applicant has or plans to have children.
Often, state anti-discrimination laws also prohibit an employer from inquiring about whether an applicant is in a protected class, such as whether he or she is over age 40 or a minority group member.
An employer typically may ask an applicant if he or she has ever been convicted of a crime. Asking whether an applicant has been arrested, however, may violate anti-discrimination laws, because the Equal Employment Opportunity Commission has stated that minority group members tend to be disproportionately targeted for arrest, and whether someone has been arrested is not an indication that he or she has actually committed a crime. As a result, an employer who asks applicants whether they have been arrested, and then excludes those who have, may be engaged in discriminatory hiring practices against minority applicants.
Finally, an employer is also prohibited from asking an applicant whether he or she has participated in a strike in the past or performed union organization activities.
When may an employee be entitled to medical leave from work?
An employee who is injured or ill may not be limited to sick leave, vacation or personal leave if he or she needs time off. There are many other types of leave that an employer may be required to provide. For example, if the employee has a newborn or newly adopted child, or the employee or his or her family member has a serious health condition, the employee may be entitled to up to 12 weeks of unpaid leave per year under the Family and Medical Leave Act (FMLA). A serious health condition is an illness or injury requiring inpatient medical treatment or continuing outpatient treatment by a health care provider, or a chronic medical condition. Furthermore, many states have enacted their own family and medical leave statutes, some of which require employers to provide additional leave or paid leave.
Medical leave may also be an appropriate accommodation of a disability under the Americans with Disabilities Act (ADA). The ADA does not specify whether or what type of leave must be given to an employee who is disabled by an illness or injury, but courts have held that an employer may be required to provide leave beyond sick leave or personal leave if such leave would be a reasonable accommodation of a disability, as long as the leave is not unduly burdensome to an employer. A leave of one month might be unduly burdensome to a small employer who cannot hire a temporary worker to replace the disabled employee, but a leave of six months might not be unduly burdensome to a large employer who can hire a temporary replacement or reapportion duties. If the employer has allowed other employees to take long leaves for reasons that are not disability-related, such as sabbaticals for continuing education, a court may find that the employer is required to allow a disabled employee to take a similar leave.
An employee who suffers a work-related injury may be entitled to paid leave under the state’s workers’ compensation statute during the time when the employee is fully or partially disabled from performing his or her position. Such statutes often require the employer to offer the employee any available light-duty position fitting the employee’s physical restrictions, but if none is available, the employee is likely entitled to paid leave, which is covered under the employer’s workers’ compensation insurance.
Finally, an employer who includes a medical or personal leave provision in their employee handbook may be contractually bound to provide such leave to an employee who requests it.
Each of these types of leave may be taken concurrently; in other words, an employer may count an employee’s workers’ compensation or personal leave toward the employee’s annual 12 weeks of FMLA leave. However, if an employee has exhausted his or her FMLA leave, it does not automatically mean that he or she may be fired. Depending on the circumstances, the employee may then be entitled to additional leave, including leave provided under workers’ compensation law or as an accommodation under the ADA.
How can an employee secure a reasonable accommodation of his or her disability by an employer?
Even when an employer knows that its employee is disabled, the employer is not automatically required to find out whether the employee requires an accommodation. Instead, the burden is on the employee to make an initial request for an accommodation. The employee does not need to use the term accommodation, but needs only to inform the employer of the disability and that he or she needs some assistance in performing job duties. Once he or she has made the request, the employer is required to engage in an interactive process with the employee, to determine whether an accommodation is actually needed, and if so, what accommodation might be appropriate. Both parties have a responsibility to cooperate in finding a reasonable accommodation. For example, if the employee refuses to provide any medical evidence of his or her disability or specifically notify the employer of the essential job functions that he or she is having difficulty performing, the employer cannot be held liable for failing to provide an appropriate accommodation. Likewise, the employer cannot make a single offer of an inadequate accommodation and, if the employee refuses it, decline to search for other alternatives.
An employer may also be required to make reasonable accommodations for a job applicant, if the accommodations are necessary for the applicant to participate in the application process. An applicant who believes that he or she may need an accommodation must, like an employee, inform the employer of the need for accommodation, and then work with the employer to find an effective accommodation, if one exists. An example might be moving a typing test to a room that the applicant can reach or allowing the applicant to bring adaptive equipment to the interview, such a special keyboards. An applicant with hearing or visual impairments may be accommodated by allowing an interpreter to accompany the applicant to the interview. An employer who responds to a request for accommodation by telling the applicant that he or she cannot participate in the interview process because he or she obviously cannot perform the job duties may be violating the law.
How may an employer monitor employees in the workplace?
In most states, citizens have a right to some privacy in their persons and affairs, and this right extends into the workplace to protect employees from over-intrusive monitoring by employers. For example, employees have a limited right, created by federal and state wiretapping laws, to privacy in their telephone conversations and voice mail messages. An employer who wishes to monitor telephone calls or voice mail messages must warn employees that they are doing so, and establish that the monitoring is undertaken in the ordinary course of business, such as to monitor performance or to coach employees. An employer may also monitor communications if it has reason to believe that an employee is using the telephone or voice mail to commit theft or somehow damage the company, but again, only if the employer warns the employee that it plans to monitor. An employer who monitors phone calls or voice mail messages for any reason must stop monitoring as soon as it determines that a call or message is private.
Email messages using the employer’s network and internet access from the employer’s computer are generally not protected. Many employers monitor employee’s internet use and email messages. Monitoring is often done to ensure employees are not disseminating materials, which would itself violate employment laws (i.e., sexually explicit websites or racially harassing emails). Employees should assume their email messages and internet activities at work are not private.
Employers have monitored employees by placing video cameras around the workplace, as well. However, video surveillance of employees has been controversial. An employer who places a camera in the lunchroom or on a loading dock does not violate the law, but employers have been held liable for invasion of privacy, and sometimes for sexual harassment, after placing hidden cameras in bathrooms or in the ceilings of employees’ offices.
When is harassment illegal?
Contrary to popular belief, it is not illegal for a supervisor to harass an employee simply because he or she doesn’t like the employee’s work or doesn’t like the employee as an individual. Harassment is illegal only if it is based on some protected characteristic of the employee, such as his or her age, race, national origin, sex, religion or disability.
In addition, harassment must be severe or pervasive in order to violate the law. Courts have held that the government cannot make American workplaces pristine, but may ensure only that they are not hostile and abusive to an employee because the employee is a member of a protected class. Therefore, isolated or occasional use of racial or ethnic slurs, or sporadic dirty jokes, while offensive, will not violate the law. On the other hand, one incident of harassment, if it is severe enough, may be enough to violate the law. An example might be a sexual assault or a beating by co-workers. Likewise, harassment that is continual or that pervades the work environment is actionable. Such behavior includes constant dirty jokes or comments, repeated unwelcome passes, anti-Semitic or racist comments, or a workplace decorated with pornographic posters.
Finally, the harassing behavior must be offensive to the reasonable person and to the employee. Behavior that offends a highly sensitive employee, but which would not offend a reasonable person in the same situation, would not violate the law. Likewise, behavior that might offend a reasonable person, but that clearly did not offend the employee, will not create a right for damages. Some courts define a reasonable person as an average employee in the same protected category as the employee, for example, a reasonable female employee or a reasonable Hispanic employee; other courts consider the reaction of a generic reasonable person. In determining whether the employee was offended personally, a court or jury will consider whether the employee willingly participated in the conduct, and whether he or she used reasonably available avenues of complaint to protest the conduct.
May an employer or supervisor play favorites among employees?
Giving special treatment to an employee because of his or her race, age, gender, national origin or lack of a disability may be illegal under federal and state anti-discrimination laws if the special treatment results in some disadvantage to nonfavored employees. Examples of illegal favoritism include giving better sales territories or special assignments to employees of a certain gender or race, providing opportunities to such employees that make it more likely they will be promoted in the future, or judging their performance by easier standards so that their performance reviews tend to be better. Although affirmative action has been publicized greatly, it is only permissible when it has been ordered by a court to remedy the effects of past discrimination, or in the government or certain employers working with the federal government.
On the other hand, it is not illegal to have favorite employees, to treat some employees better than others or even to be unfair — as long as such unfairness is not based on protected criteria like race or gender. In fact, it is not illegal for a supervisor to have a consensual affair with a subordinate, and then give that subordinate special favors or a promotion because of that affair. Courts have held that while this may appear to be discrimination, in fact, the favoritism is not based on illegal consideration of any employee’s protected status, but instead upon the paramour’s special relationship with the supervisor. Where such relationships are widespread in the workplace, however, it creates a corporate culture in which it appears that an employee must have an affair with his or her supervisor in order to be promoted or get ahead. In such cases, courts have found that the employer created an environment pervaded with quid pro quo sexual harassment, where an employee is required to submit to sexual conduct in order to receive certain employment terms.
What is considered working time under the wage and hour laws?
Any work that an employer suffers or permits an employee to perform is considered compensable time under the wage and hour laws. This means that if an employer knows that an employee has performed work, even if the employee was not specifically instructed to do so or if the work was done outside the employee’s normal hours, the employee must be paid for time spent doing this work. The time will also be counted in determining whether the employee has worked 40 hours in a week and is thus entitled to overtime compensation. An employer may discipline an employee for performing unauthorized work, but the employer must also pay the employee for that work.
Many pre- and post-work activities have been specifically addressed by the regulations and court opinions construing the wage and hour laws. For example, commuting to and from work is generally not included in working time, nor is changing clothes or washing up at the work site. Performing other preparatory duties, such as assembling tools or receiving a work assignment may be considered hours worked, however. Short rest periods during the workday, such as 15-minute breaks, are hours worked. A meal period must generally be at least 30 minutes long in order to be excluded from hours worked.
For example, time when an employee is on call must be compensated if the employee must wait at the work site, even if the employee has no duties during that time. An employee who is free to go about his or her own pursuits, however, and merely leave a contact number and arrive when called need not be paid when he or she is not actually performing work. Likewise, an employee who has private sleeping quarters on the employer’s premises, and who can sleep at least five hours uninterrupted, need not be paid for the time spent actually sleeping. The employee must be paid when he or she is interrupted for work, however, and if the employee’s sleep is frequently interrupted, the employee must be paid for the entire time at the work site, even time spent sleeping.
Time spent on training or education is not considered hours worked as long as the employee’s participation is completely voluntary, the employee attends outside of his or her regular working hours, and the employee performs no productive work during the class. Finally, time spent traveling for the employer is hours worked if the traveling is part of the employee’s principal activities (for example, traveling between multiple work sites, or a day trip to an out-of-town location), although travel undertaken for an overnight trip is not compensable unless the travel is done during normal working hours, or the employee actually works as he or she is traveling.
Is an employer limited in their ability to fire an employee?
Although employment is presumed to be at will (meaning that the employer may fire the employee for any reason, or no reason at all), this at-will presumption is limited by a number of competing rules. An employer may not fire an employee for discriminatory reasons, such as because of his or her race or sex. The employer also may not fire the employee because the employee has engaged in a protected activity. Protected activities include complaining of harassment, discrimination or another violation of the law; filing a lawsuit against the employer claiming discrimination; filing a workers’ compensation claim; or participating in an investigation of the employer by an administrative agency such as the Equal Employment Opportunity Commission or the Environmental Protection Agency. An employee who can show that he or she was fired shortly after engaging in such a protected activity may be able to sue the employer for illegal retaliation.
An employer may also be limited in its ability to fire an employee by the terms of a union contract or collective bargaining agreement, or by the terms of a contract with the individual employee. Finally, if the employer is a public entity, such as a federal, state or local government; a school district; or a government agency, the employer may be required to provide the employee with a notice and an opportunity to be heard before firing the employee, and may also be required to show just cause, such as poor performance or the violation of a work-related rule by the employee, in order to fire the employee.
May an employer fire an employee and then ask the employee to sign a waiver of claims or severance agreement?
Many employers will offer some form of severance payment to an employee who has been fired or laid off, but will make that payment contingent on the employee signing an agreement to release any potential claims he or she may have against the employer, such as for breach of contract or discrimination. Such agreements are generally legal, but are often enforceable only if the employer complies with certain requirements.
For example, the employer must make clear just what potential claims the employee may be waiving in the agreement, such as by listing the various laws (for example, Title VII or the Americans with Disabilities Act) under which the employee will no longer be able to sue. The employer must also give the employee an opportunity to review and consider the agreement and to consult an attorney if he or she wishes to do so. In fact, some laws, such as the Age Discrimination in Employment Act and the Older Workers Benefits Protection Act, specifically require that the employer advise the employee to contact an attorney, and even require the employer to offer the employee up to three weeks to consider whether he or she wants to sign the agreement. An employer, who presents an employee with a severance agreement at the same meeting in which the employee is fired and demands that the employee sign the agreement or do without severance, will have a hard time enforcing the agreement against the employee later.
Likewise, some laws mandate that, in order to effectively waive claims under the law, the employee must be able to rescind or revoke his or her acceptance of the agreement for a period of time after the employee signs it, usually a week or two. This, like the mandatory consideration period, is designed to make sure that an employee is not pressured into signing away his or her rights during the stressful period right after being fired.
Finally, some potential claims simply cannot be waived, even by an otherwise effective severance agreement. For example, claims under the Fair Labor Standards Act (the federal wage and hour law) cannot be waived by agreement between the employer and employee. Instead, the Department of Labor must be allowed to participate in any such agreement, to ensure that employees are treated fairly.
What may an employer say about why an employee left or was fired?
An employer generally may disclose, both to an employee’s co-workers and to potential employers, the true reason why an employee left or was fired. In addition, an employer who inadvertently discloses the wrong reason stating that the employee was fired for theft, for example, when the employee in fact did not steal anything, may be protected from suit by a qualified privilege. The qualified privilege is designed to help an employer protect other businesses and members of the public from persons whom it believes to be dishonest. This privilege is only available, however, where the employer has conducted a reasonable investigation into the statements that it makes, and where it discloses the information only to those who have a reasonable need to know. An employer, who receives a report of theft or sexual harassment by an employee, conducts a thorough investigation, fires the employee and then tells other potential employers the reason for the firing is probably protected, even if the report was wrong. An employer who hears a rumor that an employee has stolen and promptly fires the employee without investigating, and then tells the newspaper that he or she was fired for stealing, could be sued for defamation.
Many employers, out of fear of suit, now decline to release any information, good or bad, about present or former employees, or require an employee seeking such information (such as a favorable reference) to sign a release of any potential claims arising out of the information.
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