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New York City Law Blog

Is it permissible to favor applicants with disabilities?

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Imagine there are two applicants for a job. Both are similarly qualified, but one applicant has a disability and requires the use of a wheelchair.

In that situation, federal anti-discrimination laws prohibit the employer from choosing the non-disabled applicant solely because the other applicant has a disability. But what if we turn that situation around? Can the employer choose to hire the applicant who has a disability solely because that applicant has a disability? According to a recent opinion by the Equal Employment Opportunity Commission, the answer is yes.

DOL issues guidance on proper classification of contractors

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The U.S. Department of Labor Wage and Hour Division recently issued a field assistance bulletin (FAB) entitled "Determining Whether Nurse or Caregiver Registries Are Employers of the Caregiver." While the bulletin focuses on nurses and other caregivers, it provides valuable insight into the proper classification of workers and independent contractors regardless of industry. It also indicates that the DOL will consider the totality of the circumstances when determining whether a worker should be considered an employee or an independent contractor.

The question of whether a worker is an employee or an independent contractor is a legal one. Courts generally rely on a multifactor test to make this determination, with the most commonly discussed factor being whether the company or the worker controls the details and performance of the work. The more that a company controls the work, the more likely the courts will deem that worker to be an employee.

What Is a Turnover Proceeding?

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Enforcing a judgment is largely a procedural endeavor. When a judgment is entered, the law bestows upon the creditor certain procedural powers that can be used not only against the debtor, but against people and entities associated with the debtor as well. One tool in a creditor's arsenal that can be very effective in enforcing a judgment is known colloquially as a turnover proceeding.  

"No poaching" fast food franchise rules under scrutiny

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The New York attorney general, along with attorneys general from nine other states, are investigating so-called "no poaching" agreements between franchisees. These agreements prevent one franchise location from hiring employees already in the same chain.

The agreements, which are included in franchise contracts, are not always visible to employees, so employees may not be aware that a transfer to another location is prohibited.

New York construction company indicted for wage theft, fraud

AdobeStock_80722903.jpeg"Time and again, we've seen how wage theft is symptomatic of an overall disregard for workers' well-being on work sites where companies regularly defraud their employees," said Manhattan District Attorney Cyrus R. Vance Jr. in a press release.

His office has just obtained an indictment against CRV Precast Construction, LLC, and six of its employees. They are charged with intentionally misclassifying workers into lower-skilled categories to pay them less than the prevailing wage for their work. Moreover, the defendants allegedly falsified information about the workers for insurance purposes, resulting in them being underinsured for the risk of their jobs.

What's the best way to calculate the 12-month FMLA leave period?

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If you're an employer covered by the federal Family and Medical Leave Act, you probably know that employees are entitled to up to 12 weeks of unpaid leave in a single 12-month period (16 weeks when caring for a military family member). The way you calculate that 12-month period can affect how much continuous leave the employee can receive, along with the cost of administration.

There are four calculation methods to choose from. All of them are legal, although you must be consistent. The FMLA year can be calculated based upon:

Former chauffeur for Donald Trump sues for unpaid overtime

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"In an utterly callous display of unwarranted privilege and entitlement and without even a minimal sense of noblesse oblige President Donald Trump has, through the defendant entities, exploited and denied significant wages to his own longstanding personal driver," reads a recent complaint filed in New York against the Trump Organization and associated entities.

The complaint was brought by a man who worked as Donald Trump's personal chauffeur for more than 20 years until Trump was elected president and the Secret Service took over. He claims that he was paid a straight salary with no overtime even though he worked an average of 50 to 55 hours per week. That violates the federal Fair Labor Standards Act (FLSA) and New York Labor Law, the driver claims.

What to Do When a Debtor's Assets Are Tied Up in a Corporation

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Shareholders of startups and closely held corporations often tie their livelihoods to the success of the company. In many cases, these shareholders may not take a salary or any distributions from the company, giving judgment debtors fewer avenues to collect.

When a debtor has no wages to garnish and no money in a personal bank account to seize, a creditor may wonder, "How can it be so difficult to collect from the CEO of a successful company?

Have questions about workplace protections for mothers?

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The Equal Employment Opportunity Commission is receiving a record number of claims alleging pregnancy discrimination. Between the rise in claims and recent media reports on the issue, many people have begun asking questions about the law on pregnancy discrimination in the workplace.

We have answered some of those common questions below.

Times: Pregnancy discrimination rampant across all job sectors

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"Some women hit the maternal wall long before the glass ceiling," a professor at the University of California Hastings College of Law told the New York Times. "There are 20 years of lab studies that show the bias exists and that, once triggered, it's very strong."

The Times recently published a substantial article on the prevalence of pregnancy discrimination in the American workforce. At Walmart and on Wall Street, the Times writes, the maternal wall is real. Reporters reviewed thousands of pages of public records and court documents and interviewed dozens of victims, attorneys, and officials. A clear pattern of bias and active discrimination emerged.

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