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New York Employment Law

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Daniel A. Cohen, Joshua Feinstein


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New York Employment Law, by Daniel A. Cohen (Walden Macht & Haran LLP) and Joshua Feinstein (Hodgson Russ LLP),  provides a fresh, and practical overview of relevant statutes and governing case law, explaining the interplay between state, local, and federal requirements. It identifies and follows path-breaking developments presently shaping this area of law. Among other critical topics, it addresses the employment contract; common law duties of loyalty; restrictive covenants; wage and hour laws and ordinances, including minimum wage and overtime requirements; laws against discrimination based on characteristics such as race, sex, sexual orientation, disability, age, and religion; employee leave requirements; whistleblower laws; torts in the workplace, including employer liability to third parties and workers’ compensation; protected speech and privacy; reductions in force; and unemployment insurance.

  • Organized as a one-volume desk reference, New York Employment Law:
  • Tracks the body of law you need to follow year to year.
  • Narrows the focus before more costly research is employed by your associates.
  • Provides practical suggestions and expert commentary.
  • Views your matter through the eyes of respected colleagues and adversaries.
  • Examines steps employers can take to avoid litigation.
  • Identifies workplace policies that minimize liability.

New York Employment Law:

  • Updates, briefs and informs employment attorneys, business litigators, General Counsel
  • Advises human resource professionals as they interact with their legal departments.
  • Informs and equips general practitioners without an extensive law library.

New York Employment Law analyzes in detail key provisions of New York employment statutes, including the New York Labor Law, the New York State Human Rights Law, the New York False Claims Act, the New York Worker Adjustment Retraining Notification Act, and the New York Unemployment Insurance Law. In addition, this book includes an extensive discussion of local law requirements, including the significant body of case law addressing the unique requirements of the New York City Human Rights Law.
              
This resource further highlights critical differences between New York law and major federal statutes, including Title VII of the Civil Rights Act of 1964 (as amended), the American with Disability Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Family and Medical Leave Act, and First Amendment case law.


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  • Availability: Available
  • Brand: New York Law Journal Books
  • Product Type: Books
  • Edition: 2019
  • Page Count: 578
  • ISBN: 978-1-62881-549-8
  • Pub#/SKU#: NEMPT19
  • Pub Date: 11/28/2018

Author Image
  • Daniel A. Cohen
Daniel A. Cohen is Special Counsel to Walden Macht & Haran LLP in New York City. Cohen has extensive litigation experience in the state and federal courts of New York, in both the trial courts and the appellate courts. His practice areas include complex commercial litigation, corporate governance, employment disputes, securities fraud, RICO, insurance coverage, and judgment enforcement.

Cohen publishes regularly on matters relating to civil procedure. Cohen is a former chair of the New York County Lawyers Association committee on insurance. Cohen also was a founding member of the Board of ALM’s online publication, New York Smart Litigator and a frequent contributor of Ask the Expert columns for that publication.
Cohen graduated from Princeton University in 1986. He received graduate degrees in philosophy from Oxford University and the University of Michigan before graduating from the University of Michigan Law School in 1994, where he was an Articles Editor of the Law Review. After law school, Cohen clerked for the Hon. J. Edward Lumbard on the Second Circuit Court of Appeals before entering private practice.


Author Image
  • Joshua Feinstein
Joshua Feinstein is a partner with Hodgson Russ LLP in Buffalo, New York. Feinstein concentrates his practice in business litigation, with an emphasis on employment discrimination cases, non-compete litigation, wage and hours disputes, municipal law, appellate work, and international and cross-border litigation, among other commercial disputes. He has tried multiple cases and has argued repeatedly before both the New York Appellate Division and the U.S. Court of Appeals for the Second Circuit.

Feinstein has written and presented on a variety of employment law topics, including recent U.S. Supreme Court jurisprudence, mitigating disparate-impact liability risks, harassment, social media risks, wage and hour issues, and defending municipalities against civil rights lawsuits.  In 2014, he also received the Law Firm Pro Bono Coordinator of the Year Award from the Erie County Bar Association Volunteer Lawyers Project.  Feinstein is a cum laude graduate of New York University Law School. He received his undergraduate degree from Swarthmore College and also has a Ph.D. in modern European history from Stanford University.


ABOUT THE CONTRIBUTORS

Michael A. Filoromo, III is a partner with the whistleblower and employment law firm Katz, Marshall & Banks, LLP, in Philadelphia. He has helped achieve successful outcomes for numerous clients under the Sarbanes-Oxley corporate whistleblower protections, the False Claims Act and the anti-discrimination and retaliation protections of Title VII of the Civil Rights Act and corresponding state laws. He regularly represents whistleblowers in the aviation, nuclear, railroad, pharmaceutical and health care industries. Filoromo is the secretary of the Eastern Pennsylvania chapter of the National Employment Lawyers Association.

Howard Schragin is a founder of Sapir Schragin LLP in White Plains, New York. He is a seasoned labor and employment attorney who handles a wide range of labor and employment matters on behalf of employees and employers, including employment discrimination, harassment, retaliation, single plaintiff, class and collective wage and hour claims (overtime and unpaid compensation), wage and hour compliance, disability and other leave-related issues, wrongful termination, contract disputes, restrictive covenants and employee benefits. He is a member of the New York State Bar Association, Labor and Employment Law Section, New York City Bar Association and Westchester County Bar Association. He has written and spoken for various organizations on a range of employment law topics.

   


Chapter 1: The Employment Contract
1-1 THE EMPLOYMENT RELATIONSHIP
1-1:1 Definitions
1-1:2 Distinction Between an Employee and an Independent Contractor
1-2 EMPLOYMENT FOR A DEFINITE TERM
1-2:1 Linking Term of Employment to an Event
1-2:2 Permanent or Lifetime Employment
1-3 JUST CAUSE AND WRONGFUL DISCHARGE
1-3:1 Grounds Providing Just Cause for Termination
1-3:2 Waiver
1-3:3 After-Acquired Evidence
1-3:4 Constructive Discharge
1-3:5 Common-Law Damages for Wrongful Discharge
1-4 EMPLOYMENT AT WILL
1-4:1 Limits to Employment at Will
1-4:2 Lack of Common Law Exceptions
1-4:3 Retaliatory Discharge of Attorneys
1-4:4 Change in Terms of Employment
1-5 STATUTE OF FRAUDS
1-5:1 Unenforceability of Oral Multi-Year Contracts
1-5:2 Promissory Estoppel
1-5:3 Fraudulent Inducement
1-5:4 Contract for an Indefinite Term
1-5:5 Contracts Performable Within One Year
1-5:6 Renewal of Contracts
1-6 EMPLOYEE HANDBOOKS
1-6:1 Reliance Test
1-6:2 Guidelines Versus Promises
1-6:3 Contractual Limitations on Pre-Termination Procedures

Chapter 2: The Employee’s Common Law Duties and Restrictive Covenants
2-1 THE EMPLOYEE’S DUTY OF LOYALTY
2-1:1 Duty Not to Compete With a Current Employer
2-1:2 Duty Not to Divert the Employer’s Business Opportunities
2-1:3 Duty to Protect Confidential Information and Trade Secrets
2-1:4 Remedies
2-2 RESTRICTIVE COVENANTS
2-2:1 Covenants Not to Compete
2-2:2 Reasonableness Requirement for Restrictive Covenants
2-2:3 Effect of Employer Breach
2-2:4 Forfeiture Provisions and the Employee Choice Doctrine
2-2:5 Measure of Damages
2-2:6 Liquidated Damages
2-2:7 Choice of Law Provision
2-3 SOLICITATION OF A COMPANY’S EMPLOYEES
2-3:1 Common-Law Claims
2-3:2 Covenants Not to Solicit Employees

Chapter 3: Wage and Hour Provisions
3-1 OVERVIEW
3-2 PAYMENT OF WAGES
3-2:1 Definitions
3-2:2 Frequency of Payment
3-2:3 Payment of Commissions to Independent Contractor Salespersons
3-2:4 Direct Deposit of Wages
3-2:5 Deductions From Wages
3-2:6 Notice and Recordkeeping Requirements
3-2:7 Rules Against Retaliation
3-2:8 Prohibition on Sex-Based Pay Discrimination
3-2:9 Special Considerations in New York City
3-3 MINIMUM WAGE AND OVERTIME REQUIREMENTS
3-3:1 Minimum Wage Act
3-3:2 Exceptions to Minimum Wage Requirements, or Who Is Not an Employee?
3-3:3 Enforcement of the Minimum Wage Act
3-3:4 Minimum Wage Orders
3-4 WHITE COLLAR EXEMPTIONS TO OVERTIME
3-4:1 Generally
3-4:2 Executive Exemption
3-4:3 Administrative Exemption
3-4:4 Professional Exemption
3-4:5 Outside Salespersons
3-5 HOURS OF WORK
3-5:1 Hours That Constitute a Day’s Work
3-5:2 One Day Rest in Seven
3-5:3 Meal Periods
3-5:4 New York State Paid Family Leave
3-6 DOMESTIC WORKERS

Chapter 4: Laws Against Discrimination
4-1 OVERVIEW OF APPLICABLE STATUTES
4-1:1 New York State Human Rights Law
4-1:2 New York City Human Rights Law
4-1:3 Additional Sources of State Law
4-1:4 Federal Sources of Law
4-1:5 Summary of Major Differences Among Local, State, and Federal Employment Discrimination Laws
4-2 PROHIBITED CONDUCT
4-2:1 Race and Color Discrimination
4-2:2 National Origin Discrimination
4-2:3 Alienage and Citizenship Discrimination
4-2:4 Sex and Gender Discrimination
4-2:5 Age Discrimination
4-2:6 Religious Discrimination
4-2:7 Marital Status Discrimination
4-2:8 Pregnancy Discrimination
4-2:9 Familial Status
4-2:10 Disability Discrimination
4-2:11 Family, Medical, and Parental Leave
4-2:12 Persons With Criminal Convictions
4-2:13 Unpaid Interns
4-2:14 Employment Status Discrimination Under the NYCHRL
4-2:15 Caregiver Status Discrimination Under the NYCHRL
4-2:16 Consumer Credit History Discrimination
4-2:17 Uniformed Service Discrimination Under NYCHRL
4-3 PROVING DISCRIMINATION
4-3:1 Proving Discrimination Under the NYSHRL
4-3:2 Proving Discrimination Under the NYCHRL
4-3:3 Mixed Motive Cases
4-3:4 Use of After-Acquired Evidence
4-3:5 Disparate Treatment and Disparate Impact Liability
4-3:6 Harassment
4-3:7 Retaliation
4-3:8 Liable Parties
4-3:9 Employer
4-3:10 Aiding and Abetting Liability
4-3:11 Individual Liability Under Reconstruction Era Federal Statutes
4-4 ADMINISTRATIVE REMEDIES
4-4:1 New York State Division of Human Rights
4-4:2 New York City Commission on Human Rights
4-5 PRIVATE CAUSES OF ACTION AND STATUTES OF LIMITATIONS
4-5:1 NYSHRL
4-5:2 NYCHRL
4-5:3 Tolling
4-5:4 Relation-Back Doctrine
4-5:5 Election of Remedies
4-5:6 Notice of Claim
4-5:7 Accrual of Discrimination Claims

Chapter 5: Whistleblower Programs and Protections
5-1 OVERVIEW
5-2 NEW YORK STATE STATUTES
5-2:1 New York Whistleblower Law
5-2:2 New York Healthcare Whistleblower Law
5-2:3 New York Public Sector Whistleblower Law
5-2:4 New York False Claims Act
5-2:5 New York Workers’ Compensation Retaliation Law
5-2:6 Occupational and Public Safety and Health Protections
5-2:7 Protections for Workers Reporting Violations of Industry Fair Play Acts
5-2:8 Protections for Healthcare Employees Reporting Patient Care Issues
5-3 NEW YORK COMMON LAW
5-4 FEDERAL STATUTES

Chapter 6: Torts and the Workplace
6-1 THE EMPLOYER’S LIABILITY TO THIRD PARTIES
6-1:1 Respondeat Superior
6-1:2 Principal-Agent Liability
6-2 WORKERS’ COMPENSATION
6-2:1 Types of Benefits Available
6-2:2 Overview of Claim Process
6-2:3 Exclusive Remedy Rule and Its Exceptions
6-2:4 Requirement That Employment Have Causal Nexus to Injury
6-2:5 Exceptions to Employee Eligibility for Workers’ Compensation
6-2:6 Determination of Whether Injured Party is an Employee
6-2:7 Special Employers
6-2:8 Work-Related Stress
6-2:9 Liens and Third-Party Actions
6-2:10 Fraud
6-2:11 Employer Retaliation

Chapter 7: Protected Speech and Privacy
7-1 SPEECH PROTECTIONS
7-1:1 Overview
7-1:2 Matter of Public Concern
7-1:3 Balancing Test
7-1:4 Employee Statements Pursuant to Official Duties
7-1:5 Affirmative Defense
7-1:6 New York State Law Speech Protections
7-2 ROMANTIC RELATIONS
7-3 DRUG TESTING
7-3:1 Introduction
7-3:2 Public Employers
7-3:3 Private Employers
7-3:4 New York State Law
7-3:5 Medical Marijuana
7-4 MEDICAL EXAMINATIONS
7-4:1 Federal Law
7-4:2 State Law
7-5 DEFAMATION AND EMPLOYMENT REFERENCES

Chapter 8: Reductions in Force
8-1 NEW YORK WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT
8-1:1 Generally
8-1:2 Comparison Between the New York and Federal Acts
8-1:3 Exceptions to the NY WARN Act Requirements
8-1:4 Protections Under the National Labor Relations Act
8-1:5 Penalties and Damages

Chapter 9: Unemployment Insurance
9-1 FEDERAL-STATE SYSTEM
9-2 NEW YORK UNEMPLOYMENT INSURANCE
9-3 ELIGIBILITY
9-3:1 Employers
9-3:2 Employees
9-3:3 Eligible Claimants
9-4 BENEFITS AND CONTRIBUTIONS
9-4:1 Calculation and Duration of Benefits
9-4:2 Employer Contributions
9-5 GROUNDS FOR DENIAL
9-5:1 Voluntary Separation
9-5:2 Refusal of Employment
9-5:3 Misconduct
9-5:4 Criminal Act
9-5:5 Industrial Controversy
9-5:6 Willful False Statement
9-6 CLAIMS
9-6:1 Making a Claim for Benefits
9-6:2 Initial Determinations
9-6:3 Administrative Law Judge Hearings
9-6:4 Unemployment Insurance Appeal Board
9-6:5 Benefits During Pendency of Appeal
9-7 PENALTIES
9-7:1 Civil Penalties
9-7:2 Criminal Penalties

Appendix
Table of Cases
Table of Statutes and Rules
Index