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Westchester Employment Law Blog

Lunch breaks may be compensable in some situations

Most full-time New York workers need to take a lunch break at some point in their day. Lunch breaks typically last between 30 minutes and an hour, and they are different from the shorter rest breaks that may be offered throughout the day. While short breaks are always paid for, lunch breaks may not be compensable.

According to the Fair Labor Standards Act  and New York State Labor Law, employees must be compensated for all of the time that they work. A lunch break could be considered "work time" if an employee is restricted in their activities. For example, an employee should be paid for their lunch period if the employee is required to eat their lunch in uniform and on the work site and may be suddenly called to perform work duties, or if the employee stays at their desk and performs work during their lunch period and the Company is aware that the employee is doing so.

EEOC releases enforcement guidance for anti-discrimination laws

Most New York employers are subject to the provisions of Title VII of the Civil Rights Act of 1964, which among other things forbids workplace discrimination against members of protected classes. In November, the Equal Employment Opportunity Commission issued a guidance on discrimination based upon national origin.

The enforcement guidance fact sheet issued by the EEOC does not describe new laws or ordinances. Rather, it explores the precise meaning of Title VII and offers useful examples taken from real life that will help guide employers as they seek to maintain a workplace without discrimination and reinforce employee rights.

Wells Fargo employees file ERISA lawsuits

New York employees and customers of Wells Fargo Bank may be familiar with the controversy over the company's stock. It has been alleged that Wells Fargo used aggressive sales tactics to get customers to open accounts. As a result of the tactics, millions of unauthorized customer accounts were opened, and the bank's stock price was inflated. After the illegal sales processes were disclosed, the value of Wells Fargo shares fell by 12 to 15 percent.

Several Wells Fargo employees who are company retirement plan participants are now filing lawsuits against the bank under the Employee Retirement Income Security Act. The plaintiffs are seeking class action status and alleging that Wells Fargo executives violated ERISA by continuing to offer Wells Fargo stock as an investment option in those plans.

New York grants unemployment to 2 Uber drivers

State regulators in New York have ruled that two former Uber drivers who were deactivated by the company are eligible for unemployment insurance. This indicates that the state is considering them employees and not contractors. Making its drivers contractors is a critical aspect of Uber's business model. It prevents the company from having to pay benefits, expenses or a guaranteed minimum wage.

The two drivers had filed for unemployment in 2015. After months with no resolution, on claims that are supposed to be resolved in three to six weeks, the New York Taxi Workers Alliance sued the state. One man was subsequently notified in August that he would be paid benefits of up to $420 weekly while the other man was notified that he was eligible for up to $353 weekly. Although the state's decision does not apply to all Uber drivers, many workers' advocates are still considering the result a victory.

Accusing disabled workers of theft

Most workers in New York and across the country who have disabilities are protected under the Americans with Disabilities Act. The purpose of the law is to prevent employment discrimination against people with disabilities and make sure that employers make reasonable accommodations for them. Two cases of alleged employee theft resulted in the employees receiving compensation after their employers were charged with violating the ADA.

In the first case, an employee at Walgreens who is diabetic was charged with theft after she opened a bag of potato chips prior to purchasing them from the store. The employee was having a low blood sugar attack and had no food of her own in her possession, although she was allowed to keep candy bars with her during her shift because of her diabetes. After eating some chips, she attempted to purchase the bag but found no one at the register. She left the open bag at the register and resumed her work duties. Later she was fired for the incident.

EEOC takes broader view on retaliation than do the courts

When New York employees file a discrimination complaint or engages in another legally protected activity, their employers are prohibited from retaliating against him or her for doing so. Retaliation includes any adverse action that an employer takes in reaction to the person's engaging in the activity. The Equal Employment Opportunity Commission has updated its guidelines about retaliation.

According to the EEOC, retaliation includes any adverse action, including actions that do not adversely impact the person's job. The EEOC considers employers that make negative comments about employees to the media as retaliatory even if the worker is allowed to continue working. In addition, traditional retaliatory actions include such things as firings, demotions and other actions that materially affect the person's job or work conditions

Age discrimination is holding back many older U.S. workers

According to a recent study, older people in New York and across the United States are struggling to find work during the economic recovery. Experts say one of the primary reasons for this is age discrimination.

On the surface, the August jobs report showed solid job growth. The national unemployment rate remained steady at 4.9 percent, and the jobless rate for individuals over age 55 was just 3.5 percent. However, those numbers don't tell the whole story. When part-time workers who want to work full-time and unemployed people who have recently given up searching for jobs are included, the unemployment rate jumps to 8.9 percent, according to a report by the Schwartz Center for Economic Policy Analysis. Worse, if one adds in older people who gave up looking for jobs after more than a month, the unemployment rate is 12 percent.

Employees have rights under the law

Federal law requires New York employers to pay their employees for all time spent under the employer's control and while working in the employer's interests. This includes the time that the employee isn't performing job duties. Depending on the state, there may be exceptions to this rule, such as one unpaid meal break lasting at least 30 minutes during a six-hour shift.

The Fair Labor Standards Act was initially enacted in 1938. It requires all employees who are not exempt to be paid at least the federal hourly minimum wage, as well as overtime pay for any time worked over 40 hours during a work week. Some employees are on-call at times, such as on the weekends. This is not time under the employer's control since they are free to do as they wish with enough time for personal activities, except while answering the call. Another example of off-duty time is a split shift. This means that they work for a certain amount of time in the morning, they are relieved of their duties, and they know exactly what time to come back in the evening.

English-only rules at work could expose employers to lawsuits

New York is home to many immigrants, and Title VII of the Civil Rights Act of 1964 bars employers from discriminating against employees on the basis of national origin. Discrimination, however, can take many forms, and English-only rules at workplaces represent one possible one.

The Equal Employment Opportunity Commission might accept rules about language use if the rule applies to limited situations. The position of a public speaker whose purpose is to communicate with English-speaking people provides one example of when an English requirement would be valid. Such a situation illustrates a business necessity for the rule.

Survey reveals "Mad Men" misogyny lives on in advertising

The advertising business of the 1950s and 1960s was depicted as highly misogynistic in the New York-based period drama 'Mad Men," and fans of the highly rated show may be shocked to learn that sexual harassment still appears to be a major problem for the industry. The American Association of Advertising Agencies asked about 400 female advertising employees about their workplace experiences, and more than half of them said that they felt at least somewhat vulnerable to unfair treatment.

A third of those polled said that they had been passed over because of their gender, and 40 percent said that being a woman had led to them being excluded from the decision-making process. The women surveyed by the trade group ranged from senior executives to midlevel managers, and more than half of them said that they had been subjected to some sort of sexual harassment at least once during their careers. The results of the 4A study were published in summary form on Aug. 11.