New York's Paid Family Leave Benefits Law Takes Effect Soon

New York State’s Paid Family Leave Benefits Law (“PFLBL”) takes effect January 1, 2018. Although some companies have been preparing for this employment law development for some time, every employer with at least one employee should review the PFLBL's basics.

Job-protected, paid family leave (“PFL”) benefits will increase in four phases. Employees will be entitled to a number of paid weeks off at increasing percentages of the lesser of their average weekly pay or New York State’s average weekly wage as follows:

·      January 1, 2018: Eight weeks; lesser of 50% or 50%;
·      January 1, 2019: 10 weeks; lesser of 55% or 55%;
·      January 1, 2020: 12 weeks; lesser of 60% or 60%;
·      January 1, 2021: 12 weeks; lesser of 67% or 67%.

The PFLBL supplements, and does not replace, the the Family Medical Leave Act (“FMLA”). Employees at companies with 50 employees or more who have worked for a year or more may take more than 12 weeks. An employer need not pay that employee for such additional time under the PFLBL. Employees remain free to use paid time off, if it is available, rather than PFLBL leave, if they so choose.

If a full-time employee has worked for at least 26 consecutive weeks, or if a part-time employee has worked for at least 175 days, that employee may take PFLBL leave related to:

·      care for family members with serious health conditions;
·      bonding with a new-born child during the baby’s first year;
·      adoption or foster care placement; and
·      certain exigencies related to a family member’s military service.

The PFLBL does not provide for paid time off for an employee’s own medical condition. New York’s short-term disability scheme covers those situations.

Employers may begin collecting weekly employee contributions beginning July 1, 2017. Employees may not opt out. Employers should consult with their disability insurance carriers, review paid time off policies with their employees, post all necessary legal notices, and, as always, consult with legal counsel experienced in this area to prepare themselves for these changes.

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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

Noncompetes Are Poison

Noncompete agreements poison our economy. 

That is the view of Harvard Law grad and Op-Ed Contributor Orly Lobel in a thoughtful piece published recently in the New York Times. 

Analyzing data compiled by the Treasury Department, Ms. Lowry notes that noncompetes were "once reserved for a corporation's most treasured rainmakers," but are now "routinely applied to low wage workers" like warehouse employees, fast-food workers, and even dog-sitters. She claims that noncompetes stifle performance, and reduce employee motivation and entrepreneurship. 

Her solution? Ms. Lobel argues that, at a minimum, every state should ban noncompetes purporting to restrict:

  • low-wage workers;
  • workers "in occupations that promote public safety and health"; and 
  • workers who were terminated without cause.

In New York State, noncompetes are enforceable against employees only to the extent they:

  • are no greater than necessary to protect and employer's legitimate business interest;
  • do not impose undue hardship on the employee;
  • do not cause injury to the public; and
  • are reasonable in both geographic scope and duration.

Regardless of whether noncompete agreements poison our economy, they appear to be here to stay in New York State. Although New York courts strongly disfavor enforcing noncompetes, an employee is well-advised to review with counsel any such agreement before signing. Even if you feel compelled to sign one for fear of losing your offer of employment, look for advice from an attorney with experience in this area prior to signing.

 

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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

(Don't) CLICK HERE - Another National Phishing Scam Offers Another Lesson in Data Security

“Don’t open that Google Doc ‘I’ sent you!” How many texts like this did we see this week?

Another national phishing scam, this one involving Google Docs, reminds us to be vigilante regarding our cyber data. Mass media outlets and specialty trade journals agree that this attack was particularly sneaky. Although Google claims the attack affected 0.1 percent of Gmail users, this amounts to 1 million accounts.

Cyber attacks and phishing scams are annoying to individuals. But they can cripple you business. If personally identifying information (“PII”) or other statutorily protected data in your company’s care is compromised, individual employees and companies alike can be sued, fined, and in some cases, criminally prosecuted.

Increasingly, companies store their information utilizing remote networks of servers (often referred to as “The Cloud”). This increases the risk of cyber attacks. As I previously noted in an earlier post phishing scammers seem to be moving “down the food chain” by attacking smaller companies with less sophisticated defense networks.

Now more than ever, small to mid-size businesses should consider drafting, implementing, and testing data breach incident response plans. No one can avoid a cyber attack. But a data breach incident response plan is a cost-effective measure to reduce the adverse impact a cyber attack may have on your business.

Typical elements of an effective data breach incident response plan include the following:

Before the Cyber Attack

·      Establish an Incident Response Team;

·      Include at least one manager or officer on the Team;

·      Include a member of the company’s IT group on the Team;

·      Identify legal counsel to assist your Team with its response;

·      Identify a third-party IT vendor to assist with breach analysis;

·      Identify an identity-theft and credit monitoring vendor to assist;

·      Print and circulate written copies of the Plan to all employees.

Within the First 24 Hours of the Cyber Attack

·      Notify all members of the Team;

·      Record the date, time, and place of the attack – document everything;

·      Secure the premises;

·      Identify scope of breach;

·      Determine (with counsel) whether to notify law enforcement;

·      Identify (with counsel) which state laws apply.

Within the First 72 Hours of the Breach

·      Different states have different notice requirements. Accordingly, some affected persons must be notified right away;

·      Most states require potentially affected persons to be notified, too;

·      Notify government agencies as required by each jurisdiction implicated;

·      Supply government agencies with the “notices of cyber attack or data breach” already provided to those affected;

·      Notify and engage identity-theft and credit monitoring vendor.

Within the First Nine Months

·      Follow-up with credit monitoring vendor on status;

·      Maintain toll free number to field inquiries from affected person;

·      Review IT protocols to reduce risk of recurring breaches.

Although no one “template” fits all data breach notification scenarios, a typical notification letter will include:

·      An opening paragraph stating plainly what happened;

·      A brief statement expressing regret and demonstrating empathy;

·      A brief description of your action plan, including phone numbers for affected persons to use in order to get more information;

·      NOTE: Draft these letters mindful of your potential duty to provide them to government agencies and/or the authorities.

Although cyber attacks and data breaches are common, they are highly fact-dependent. No two breaches are exactly alike. It is critical to consult with legal counsel experienced in this area, ideally before, but certainly after, a cyber security or other similar data breach.

 

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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

Don't Be Evil? DOL Charges Google with "Extreme" Pay Discrimination

The federal government has charged tech giant Google Inc. of gender pay inequity on a massive scale. After reviewing a sampling of HR data obtained from the company, the Department of Labor accused Google of "extreme" discrimination against female employees. The DOL cited a "systematic" gap in pay between men and women at the company and filed a lawsuit to require Google to provide additional compensation data and documents as part of a broader inquiry into the company's employment practices.

It is illegal for employers to discriminate because of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran. In addition, employers are prohibited from discriminating against employees because they have inquired about, discussed or disclosed their compensation or that of others, subject to certain limitations. 

If you think you have been discriminated against on the basis of your gender, you should contact experienced employment law counsel as soon as possible to better understand your legal options.

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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

May a Company Reject A Job Applicant Based Solely On Age?

May a company refuse to consider hiring a job applicant based solely upon age? RJ Reynolds Tobacco Co. thinks so, and has asked the U.S. Supreme Court to condone such behavior in a dispute involving a 49 year-old job applicant it rejected in 2007

Richard Villareal applied for a sales manager job with Reynolds in 2007. At that time, Reynolds had retained a subcontractor to review all job applications. Reynolds' subcontractor discarded Villareal's resume solely because he was older than 35. It also discarded the applications of almost 20,000 other older applicants based on their age. Of the roughly 1,000 sales managers the tobacco company hired between 2007 and 2010, only a dozen or so were over the age of 40. After a whistleblower emerged in 2010, Villarreal sued.

The U.S. Supreme Court has granted cert and will soon hear the case. Employment attorneys around the country are watching.

If you believe you have been denied employment based solely on your age, contact experienced counsel to discuss your rights. In the meantime, check back with kevinburkeattorney.com for updates on the Villareal matter.

Comment

Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

How to Protect Your Business Without Noncompete Agreements

Courts disfavor noncompete agreements. Smart companies recognize this. Entrepreneurs and business owners hoping to reduce the threat of key employee defections and client poaching would be well-served to read this thoughtful article by Huffington Post contributor Nina B. Ries.  

Among attorney Ries' suggestions for protecting your business assets without a noncompete agreement:

  • restrict moonlighting by current employees;
  • limit access to confidential information; and
  • conduct exit interviews involving the accounting for, and return of, company property.

Ries also suggests having employees sign less restrictive non-solicitation and nondisclosure agreements.

The best way to protect your information is to understand the law concerning intellectual property and trade secrets in your area. Contact legal counsel with employee mobility experience to ensure that your policies are up to date and are enforceable in your state.

Comment

Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

Do Not Tolerate Sexual Harassment in the Workplace

It seems that sexual harassment is always in the news.  Do not tolerate harassment at work. Inappropriate behavior in the workplace is worse than annoying or exhausting. It is unlawful.

Sexual harassment is prohibited under the New York State Human Rights Law and Title VII of the federal Civil Rights Act of 1964. Your employer is legally prohibited from using sexual conduct as a basis for any employment action. Even if no adverse employment decision is made based on your reaction to an unwanted advance, employers are prohibited by law from subjecting you to a hostile work environment.

Sexual harassment can come from anyone in the workplace. This includes owners, managers, and co-workers. In some instances, it can include clients, customers, or vendors. The wrongdoer can be a man or woman. It need not involve harassment of the opposite sex.

If you believe you've been sexually harassed at work, report the harassment to a supervisor. Make sure your complaint is documented. Follow-up to make sure appropriate action is taken. Do not ignore the problem. Do not feel pressured to "go along." If the problem persists, contact experienced counsel regarding your next options.

Comment

Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006

Should I Sign a Noncompete Agreement?

You've just been offered your dream job. The salary is great. The location and hours are perfect. You've even got an expense account. Congratulations!

There's just one catch. Buried among the documents you've been asked to sign is an agreement not to compete with your employer. Should you sign it?

Before you do, ask yourself the following questions:

Can I do this job on my own, without this new boss/company?

Am I bringing my own customers/clients to this new job?

Will they hire me if I refuse to sign?

Will they give me additional compensation in exchange for signing?

Have they enforced agreements like this against other former employees?

What are the penalties for violating this agreement?

You've probably heard that noncompete agreements are not enforceable. That is a widely held, and erroneous, belief. If a court determines that your noncompete agreement is "reasonable" and is necessary to protect the legitimate business interest of your employer, you may find yourself on the wrong end of an injunction or a significant money judgment. If you've joined a competitor of your former employer, you may even drag your new boss into your lawsuit. 

Prior to signing such an agreement, consult with experienced counsel. Discuss the precise language of the proposed agreement with your lawyer. You may be able to counter-propose a less onerous post-employment restriction. Now is the best time to negotiate your employment arrangement with your new boss. She likes you. You wouldn't have the offer if she didn't. Talk to your lawyer, and then get out there an enjoy your new opportunity!

 

 

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Kevin Burke

Kevin Burke is a partner in the Litigation, Labor & Employment Practice Group at Lippes Mathias Wexler Friedman LLP. EDUCATION: J.D., George Washington University Law School Georgetown University - B.A., magna cum laude Nichols High School School (Buffalo, New York) EMPLOYMENT: Lippes Mathias Wexler Friedman LLP - A partner in the Litigation Practice Group INTERESTS: Member, Nichols School Alumni Board Past Board Member and Officer, Western New York Trial Lawyers Association Bennett High School's Law Magnet Program Bar Association of Erie County Annual Mock Trial Tournament Attorney Coach Past Member, Kiwanis Club of Buffalo Past Member, Child & Family Services Annual Fund Board Leadership Buffalo Graduate, Class of 2006