LegalMatch: Employment Law

New York Bill Requires Domestic Employees to be Treated like Actual Employees

New York is home to a huge number of wealthy working professionals. Many of these families and individuals have children. Of course, if you work 65-hour weeks at Big Fancy Law Firm™, you don’t really have much time to raise your kids. That’s where nannies come in.

More and more families consist of two working parents. There’s absolutely nothing wrong with this, and for many families, it’s an economic necessity. This means that many parents have to hire a nanny to take care of their children while they’re at work. These individuals operate as an unseen workforce and economy, where there is almost no regulation or workplace protection.

It looks like this is about to change in New York state, at least on paper. The State Senate just passed a law which explicitly requires that all domestic employees be given the same benefits that employers in any other industry are required to provide, under state law. This includes paying them the minimum wage, providing sick days, overtime pay, paid vacation, and 2 weeks’ notice before terminating employment (or, alternatively, termination pay).

The protections in this law, which the governor of New York is expected to sign, would apply regardless of an employee’s immigration status. If you’re at all concerned about the plight of domestic workers, this bill sounds pretty good, on its face.

Many bloggers, while generally grating the bill’s good intentions, point out some pretty serious practical problems. For example, most commentators don’t have a problem with the fact that the law will seek to protect workers who are not in the country legally. They ask, however, how such provisions will be enforced. For instance, it’s not clear how many nannies, especially illegal immigrants, will report violations of this law, for fear of retaliation (being reported to immigration authorities, for example). This fact might encourage people to hire illegal immigrants to work as nannies over people who are in the U.S. legally, since illegal immigrants will be so much less likely to report violations. Of course, it could also be argued that, by applying all the same workplace rules to illegal immigrants, there is no incentive to hire them instead of citizens or legal immigrants.

Furthermore, there are concerns that this might make life much more difficult for working families, while doing very little to help domestic employees.

Nobody is denying that these issues make enforcement of the law problematic, but some lawmakers opposed to the measure have taken the rhetoric a step further, resorting to outright falsehoods. One lawmaker argues that the 2-week-notice provision might deter parents from immediately firing a nanny who they suspect of child abuse. Leaving alone the fact that any sane parent would probably not care what the law says in a situation like this, the new law specifically addresses this possibility. The notice provision doesn’t apply in cases of suspected abuse. 

Also, perhaps to alleviate concerns that this law would destroy the market for casual domestic employees, like babysitters, this law only applies to people for whom working as a nanny is their primary source of income.

As mentioned earlier, these provisions are pretty reasonable on their face. There is no getting around the problem of enforcing them, however. Indeed, according to recent LegalMatch data, hardly any workers who have reported wage, hour, or overtime violations have been in the domestic service industry, with in-home healthcare workers being a limited exception. None of the people who reported wage and hour problems anywhere in the U.S., in the last 12 weeks, appeared to be domestic childcare workers.

There are a few possible explanations for this.

First of all, it’s possible that the bill’s detractors are correct: domestic workers simply don’t report illegal conduct by their employers, because they’re illegal immigrants afraid of being found out, or any number of other possible reasons (fear of retaliation is a big one, as a significant number of nannies report verbal and physical abuse by their employers). This could serve as an illustration that laws like this, no matter their intentions, are futile.

Of course, the law’s supporters could just as easily argue that these figures demonstrate the need for the protections this law will afford. After all, they might say, these “violations” aren’t being reported, because, legally, there’s nothing to report: these workers have almost none of the legal rights that other employees take for granted, so even if they are being exploited, there’s little the law can do for them.

Obviously, based on the limited data available, it’s impossible to say which side is correct.

A few things are certain.  First, we know that there’s a problem, especially in very large cities, as domestic workers are being exploited by their employers simply because it’s easy to do. We also know that some workplace protections, similar to those enjoyed by most other employees, are necessary for domestic workers. However, it also appears plainly obvious that there’s no perfect solution to this problem.

Perhaps this law will prove to be an important step in the right direction. However, changes like this cannot be made in a vacuum if we expect them to be successful. For example, immigration reform is necessary if the effects of this law are not to be negated by the fact that many illegal immigrants will not report violations. Obviously, I don’t know exactly what these changes would entail, but a general policy geared towards making it easier to enter the U.S. legally would be a very good start.

By: Rusty Shackleford

Dissecting The "Just Cause" Requirement For Unemployment Benefits

In the midst of these hard economic times, it is no surprise that there has been an increase in unemployment benefit applications nationwide.  A while ago I wrote about unemployment rates slowly going down before the holiday season. A welcome sign, no doubt, but the problem nevertheless persists for those individuals out of work and not able to find another job.  

The basic concept behind unemployment benefits is to provide some much needed funds to individuals who are out of work, at no fault of their own, until they can find another job.  According to figures released by the U.S. Department of Labor, only 37% of workers who lose their jobs collect unemployment benefits.  But if an employee (or I should say former employee) was fired for "just cause" or voluntarily quit, then they are not eligible for benefits.

I love law and its vague terms.  

A recent article helps to shed some light on what is considered a "just cause" firing:

1.) Giving false information on a job application

2.) Knowingly breaking an employer's rules

3.) Unexcused Absences or Tardiness

4.) Purposefully Damaging The Employers Property

5.) Insubordination- refusing to obey employers instructions

6.) Reporting to work under the influence of drugs and/or alcohol or consuming drugs or alcohol on the job.

7.) Conduct that threatens the safety of others

8.) Conviction and imprisonment for a serious crime

9.) Breach of a duty you owed to your employer

10.) If you quit voluntarily

Some of these seems more self explanatory than other--its always a bad idea to do drugs or being drunk on the job.  

However, there is still an element of vagueness in what constitutes “just cause” and because of that, there is an appeal process.  In a recent study conducted by LegalMatch, there are a lot of people interested in the appeals process, which essentially allows the claimant to appeal an unfavorable decision within a certain amount of time.

I was surprised to read that less than half of workers that lose their job collect unemployment.  It may be because they were fired for just cause, but it may also be because the requirements for unemployment can seem daunting and confusing to the layperson. Losing your job and not being able to find work can be a very stressful situation and I think the lesson to be learned here is to be a good employee while you are working in order to ensure that there are government benefits available to you in case of an emergency.  

By: Violet Petran

Lying On Your Resume Turns Off Employers. Really??

In the immortal words of Chris Rock, people lie all the time (though according to him, there's some debate as to whether it's men or the finer gender that does it more often). To most people, lawyers are some of the most notorious practitioners of this pastime, but I think they're just getting a bad rap. Sure a lot of lawyers can often stretch the truth, usually to the benefit of both them and their client(s), but so does everyone else. Whether it's using that old student ID to get a discount at the movie or telling your date that you are a doctor and not the guy who walks around Chuck E. Cheese in a rat costume, lying is just a part of life.

So is it really a surprise that people lie on their resumes? No, in that according to a recent survey only 18 percent of job seekers do so. Specifically, 18 percent lie about their skill sets and 7 percent lie about past job experience, but who's counting? I know, I know, I am…

What's even more surprising, at least to me anyway, is that employers are actually turned off by it. I would think it's almost expected at this point. I mean, take a look at your resume. Chances are it's not totally truthful. Are you really a world-class tennis player? I am because I'm amazing and also very employable. *Wink Wink*  But you're probably not because you're not an innovator or as great of a team leader as I am.

Haha, just kidding O great LegalMatch employer gods! I'm your ever-faithful disciple, as long as you continue signing my checks.

Anyway, apparently lying on your resume can really turn an employer off. Seriously, it does make sense. You probably wouldn't want to hire someone who is dishonest regardless of the task they're handling, right? The article above gives some handy tips on what not to fib about on your resume, such as saying you speaking languages that you don't or lying about your job title.

Being caught in a lie by someone you know is really embarrassing, which is all the more reason why you don't want to be put in that same situation with some person you just met whom you're trying to solicit employment from. Talk about wanting to a crawl in a hole and die.

Similarly, though to some it may sound counterintuitive to want hire a lawyer who doesn't lie, it really is quite important. You may think that a deceitful attorney will be better able to represent you in a legal action; however that's really not the case. Take a step back and think about it. Though it might be true that an attorney who lies would likely be willing to forge documents or do other unethical things in your favor, it's probably also likely that the same lawyer would also lie about what he or she is doing (or more likely, not doing) to representing you.

So remember, don't lie on your resume, and make sure the company you keep does the same.

Non-Compete Clauses in Employment Contracts.

You were just offered a sparkling, six-figure salary from a top-100 business. The position is a posh one—benefits, 401ks, and stock options have been thrown at you from all directions, and it’s just a matter of choosing the best gems in the jewel box. But there’s a catch. Your saving grace, the business with the golden employment package, is in direct competition with your current employer.

Do you remember signing that non-compete clause?

If you look at most employment contracts, you’re very likely to run into a non-compete agreement or non-compete clause. These is a part of your contract that forbids you from working for your employer’s direct competitors for a specific period of time—usually several years. Take a look at your own contract and see if you are restricted from doing any of the following:

• Working for your employer’s direct competitors
• Working in a specific, competitive industry or business
• Working in a particular geographic area

If any of those “no’s” come up in your contract, you’ve probably signed a convenant not to compete.

Luckily, most non-compete clauses are nothing to worry about. The law requires all of those kinds of agreements to be reasonable, which means that an employer can’t monopolize your life by making too many restrictions. In fact, if the non-compete you signed is unreasonable, a court won’t enforce it at all.

 

What makes a non-compete clause unreasonable?

• Time: A restrictive period that lasts too long.
• Geography: A geographic restriction that is too large.
• Industry: Forbidding work for too broad a range of businesses.
• Interest: When there’s no legitimate interest in enforcing the non-compete.

So maybe you wouldn’t be able to take that glamorous job from your deep-pocketed competitor, but you aren’t going to be blacklisted from your industry either. But be wary, because there is an exception to your protection from unreasonable non-competes! If you accept and receive compensation in exchange for your agreement with a particular non-compete, the court is very likely to rule in favor of your employer.

Think a moment before you pick up your pen, and have an employment lawyer go over any employment contracts you plan to sign. Make your job work for you.

Need help understanding the details of your contract?  Post a thread with the text in question on our Employment and Labor Law Forum, and you should receive a helpful answer.

by Kate Beall