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Wednesday, July 3, 2013
Posted by RANDY L. BRAUN at 9:35 AM
Wednesday, September 12, 2012
The new amendments allow New York employers to make deductions (in addition to those existing currently under the statute) with respect to pay advances; accidental overpayment of wages; purchases made at events sponsored by bona fide charitable organizations; discounted parking passes and mass transit vouchers; gym membership dues; cafeteria, vending machine and pharmacy purchases made at the employer's place of business; tuition, room and board and fees for educational institutions; day care expenses; and payments for housing provided at no more than market rates by nonprofit hospitals.
Before an employer may take any of these additional deductions, the employer must: (i) provide the employee with written notice of the terms and conditions of the payment and its benefits; (ii) provide a written explanation of how the employer will take the deductions; and (iii) obtain the employee’s written, voluntary consent to the deduction. The employee’s consent may be revoked at any time. The employer must retain each authorization for at least six (6) years following the termination of the employee’s employment. Employees may also consent to a deduction through a collective bargaining agreement.
Interestingly, the amendments contain a "sunset provision" that automatically extinguishes the newly identified wage deductions on November 9, 2015. Accordingly, the State Legislature will likely revisit this issue at a later date to determine whether the new law is working; if it is, the "sunset provision" may be revoked.
The NYSDOL is required to issue regulations governing the timing and frequency of deductions and notice requirements, including a procedure that the employee may use to dispute the amount of the deduction. Employers are cautioned that they may wish to wait until after the NYSDOL issues its regulations, and the effective date of the new legislation, before entering into any wage deduction agreements with employees or taking any action with respect to wage deductions not permitted by statute currently.
Posted by RANDY L. BRAUN at 3:24 PM
Thursday, May 17, 2012
At the trial level, the District Court granted Defendants’ motion for summary judgment on the grounds that the Plaintiff was not engaged in protected activity under Title VII since an EEOC Charge has not been filed. On appeal, the Second Circuit affirmed and held that participation in an internal employer investigation not connected with a formal EEOC proceeding does not qualify as protected activity.
In reading the Second Circuit's decision, I can't help but believe that it will have a chilling effect on internal investigations concerning discrimination. If the investigator is not protected from retaliation where the investigation gets "too close to home," vigorous internal efforts to discover and remedy unlawful discrimination likely will suffer.
Posted by RANDY L. BRAUN at 10:48 AM
Wednesday, April 18, 2012
In light of conflicting decisions at the district court level as to whether the NLRB has authority to promulgate the rule in the first instance, the DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule. The NLRB stated that "[i]n view of the DC Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court."
More to come.
Posted by RANDY L. BRAUN at 7:26 AM
Monday, April 2, 2012
One of my clients issued a proposed, standard AIA Owner/Contractor agreement for signature. Nothing fancy, just the standard form of agreement. The Owner, who happened to be an attorney, delegated the negotiation of the agreement to her father, also an attorney. Neither father nor daughter were experienced in construction law. During the negotiations, I explained repeatedly a number of basic construction law concepts to the attorney-father such as the definition of substantial completion as well as how mechanic's liens work. It appeared that my verbal construction law primer was successful. Remember ... appearances can be deceiving. As time went on, the negotiations devolved into what seemed to be a pathetic exercise in futility.
To illustrate the absurdity of the negotiations, discussion was had ad nauseum as to whether the Owner's written approval was required in order to move an electrical outlet one inch to the right or to the left, if necessary! Sure, let's delay the Project for that while we try to track down the Owner who may have left her cell phone at home and cannot be contacted immediately. Oh, and then there was the demand that the Contractor provide its own manufacturing warranty for each and every screw, nail, piece of sheetrock and other like material which was purchased from a supply house and manufactured by a third party. Are you kidding me? I mean, really ... ARE YOU KIDDING ME?
Ultimately, it appeared that the terms of a Rider to the AIA contract had been agreed upon by the parties. Imagine my frustration when I was informed that the same issues which were resolved previously (to my mind, anyway) remained a "problem." When I asked why an attorney experienced in construction matters hadn't been retained to negotiate the contract, I was told "because my daughter wants me to do it ... I've never done this before, but the concepts are not too difficult." Oh, really? Then why did it take more hours than necessary to negotiate a basic, AIA construction contract? PUHLEEZE! My client walked away from the Project eventually, but relented when the Owner agreed to every term I proposed in the Rider to the contract.
This situation reminds me of the television commercial from a couple of years ago where a guy is trying to save some money, so he calls his surgeon to ask where he should make the initial incision for his self-performed appendectomy. Sheesh! The moral of this story is to retain experienced professionals to do the job. Just because someone has a professional license doesn't mean they are qualified to practice in a particular area. Getting the right professional from the get-go may expedite resolution of the matter and cost less in the long run. It's simply a matter of not being penny-wise and pound foolish.
Posted by RANDY L. BRAUN at 5:45 PM
Wednesday, January 11, 2012
The NLRA covers union and non-union employers engaged in interstate commerce, and applies to most employers in the private sector. There are some exclusions under the NLRA, such as for those employed by federal, state or local governments or who are independent contractors. If you are unsure as to whether you are covered by the NLRA, it is recommended that you contact counsel to determine whether the new Notice requirement is applicable to your situation.
Posted by RANDY L. BRAUN at 8:03 AM