Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for over 15 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

April 18, 2024

Last Chance Agreements for Workplace Drug and Alcohol Violations

Addressing employee issues related to drug and alcohol misuse poses significant challenges for employers, particularly when balancing disciplinary actions with the opportunity for rehabilitation. Last chance agreements (LCAs) are a nuanced tool that employers can use in such scenarios. They offer a structured yet compassionate approach to handling these sensitive issues.

What Are Last Chance Agreements?

Last chance agreements are written contracts between an employer and an employee who has violated company policies regarding drug or alcohol use. (Sometimes unions are also party to the agreement.) These agreements are not exclusively used for substance-related issues, but are common in these contexts due to the complex nature of addiction and its impact on employment.

The essence of an LCA is to provide the employee with an opportunity to rectify their misconduct through acknowledgment and compliance with specific conditions set forth by the employer. Typically, the agreement comes into play after an incident that could otherwise lead to immediate termination. The LCA offers an alternative path toward the goals of rehabilitation and retention.

Key Elements of Last Chance Agreements for Drug and Alcohol Issues

Acknowledgment of Misconduct: The employee must acknowledge their wrongdoing, specifically regarding the misuse of drugs or alcohol, and recognize the potential consequences of their actions on their employment status.
Agreement to Conditions: LCAs usually stipulate that the employee agrees to meet certain conditions to remain employed. These conditions often include undergoing treatment, abstaining from further use of prohibited substances, and subjecting themselves to random drug testing.
Referral to Support Services: Many LCAs include a referral to an Employee Assistance Program (EAP) or other professional treatment services. This aspect underscores the employer’s role in supporting employee health and recovery rather than merely punishing wrongdoing.
Disclosure Agreements: In some cases, LCAs may require the employee to authorize the disclosure of treatment-related information to the employer. This allows employers to monitor compliance with the agreement’s terms without violating privacy regulations such as HIPAA.
Final Opportunity: The agreement is typically framed as a final opportunity to remain employed. Failure to comply with the terms usually results in termination, as understood and agreed upon in advance by all parties involved.

Benefits of Using Last Chance Agreements for Drug and Alcohol Issues

Rehabilitation Over Punishment: LCAs focus on rehabilitation, offering employees a chance to overcome their struggles with substance abuse and recover their professional standing.
Legal Safeguards: They provide a clear, legally sound framework that protects both the employer and the employee. Employers can enforce the terms of the agreement, knowing they have offered a fair chance to the employee, thus mitigating potential legal challenges. For more on potential employee protections related to drug and alcohol use, read Employee Drug Addiction and Alcoholism in New York.
Workplace Safety and Integrity: By addressing drug and alcohol misuse constructively, employers can maintain safety and integrity within the workplace, ensuring that all employees operate in a safe and supportive environment.
Promoting Recovery: Encouraging treatment and recovery reflects positively on the employer’s commitment to their workforce’s well-being, fostering a supportive and understanding company culture.

Considerations for Employers

Last chance agreements represent a potential win-win solution in the delicate balance of employment law and employee welfare. They provide a structured yet empathetic approach to serious workplace issues, facilitating recovery and retention where possible, and upholding the employer’s commitment to a safe and productive work environment.

While last chance agreements offer a valuable option for managing complex employee issues, they require careful drafting to ensure they are legally compliant and effective. Employers should consult with employment attorneys to tailor these agreements to their specific workplace policies and the legal requirements of their jurisdiction.

For more employment law updates, sign up for the Horton Management Law email newsletter and follow us on LinkedIn.

March 28, 2024

New York’s Freelance Isn’t Free Act (Amended)

On November 22, 2023, New York Governor Kathy Hochul signed the “Freelance Isn’t Free Act.” She had previously vetoed the same legislation in 2022. The new law will affect most independent contractor relationships, at least requiring written contracts.

The New York Freelance Isn’t Free Act was originally scheduled to apply to contracts entered into on or after May 20, 2024. However, the law was amended on March 1, 2024, with a new effective date of August 28, 2024. Originally placed in the New York Labor Law, the Freelance Isn’t Free Act has been moved to Section 1415 of the General Business Law.

Note: New York City’s Freelance Isn’t Free Act took effect on May 15, 2017. This new state law will expand similar rights and restrictions statewide.

Freelance Workers

The law applies to a broad range of freelancers, such as writers, editors, graphic designers, consultants, and others in the gig economy.

“Freelance worker” is defined to mean:

any natural person or organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for an amount equal to or greater than $800, either by itself or when aggregated with all contracts for services between the same hiring party and freelance worker during the immediately preceding 120 days.

However, the following categories are excluded from coverage:

Sales representatives, as defined in New York Labor Law Section 191-a
Lawyers legally practicing law
Licensed medical professionals
Construction contractors

Hiring Parties

The term “hiring party” is used under the Freelance Isn’t Free Act instead of “employer,” since the law targets independent contractors rather than employees.

“Hiring party” is defined broadly as “any person who retains a freelance worker to provide any service,” except for a government entity. Accordingly, the law does not apply to public employers.

It applies to “freelance workers,” defined as individuals or single-person organizations hired as independent contractors for services worth $800 or more. The law includes a broad range of freelancers, such as writers, editors, graphic designers, consultants, and others in the gig economy.

Freelancer Contract Requirements

The Freelance Isn’t Free Act mandates that contracts between freelance workers and hiring parties be in writing. The hiring party must provide a copy of the contract to the freelancer either physically or electronically.

The contract must contain the following information:

Name and mailing address of both the hiring party and the freelance worker
Itemization of all services to be provided by the freelance worker
Value of the services to be provided
Rate and method of compensation
Date or mechanism of determining when payment will be made
Date by which a freelance worker must submit a list of services rendered to allow the hiring party to process timely payment

The New York Commissioner of Labor must provide model contracts on the Department of Labor’s website.

A freelancer can assert a violation of the Act if the hiring party did not provide a written contract upon request made before the work began. If the freelancer did not request a contract upfront, the hiring party would still be at risk of evidentiary presumptions in the freelancer’s favor if there is no written contract.

Payment

Under the Act, payment must be made either by the date specified in the contract or, if not specified, within 30 days of completing the freelance worker’s services. The law prohibits hiring parties from demanding that freelancers accept less compensation than contracted as a condition of timely payment.

Protections Against Retaliation and Legal Recourse

Hiring parties that pay late, or don’t pay at all, can be penalized with double damages.

Freelancers are also protected from retaliation for exercising their rights under the Act. Hiring parties cannot deny work opportunities or future work as a form of retaliation. Each violation may result in statutory damages equal to the contract value.

Freelancers can bring civil actions for damages, including attorney’s fees and costs. They have up to 6 years to assert nonpayment or retaliation claims.

Administrative penalties of up to $25,000 may be imposed if a hiring party has been found to have engaged in a pattern or practice of violating the Freelance Isn’t Free Act.

In addition to private lawsuits, the NYS Attorney General may pursue legal claims against hiring parties. (The original legislation provided for the Department of Labor to have administrative jurisdiction over violations of the Freelance Isn’t Free Act. However, Governor Hochul objected that this would impose too much of a burden on the DOL’s resources.)

Implications for Employers and Freelancers

The Freelance Isn’t Free Act signals a shift toward more protections for independent contractors in New York, but also places significant new burdens on hiring parties. It emphasizes the importance of clear, written contracts and timely payment practices. However, the restrictive nature of the law could result in unintended consequences, such as companies opting to work with freelancers outside of New York where possible. If your organization uses independent contractors, you should review such arrangements before the new law takes effect.

For more employment law updates, sign up for the Horton Management Law email newsletter and follow us on LinkedIn.

March 14, 2024

New York Law Limits Employer Access of Employee Social Media Accounts

As of March 12, 2024, New York state law protects employees from having their employers access their social media. The protections of employee social media accounts are not absolute. There are parameters and exceptions. Employers should familiarize themselves with the new restrictions.

Personal Employee Social Media Accounts

The law protects employees’ “personal accounts”. This term is defined to mean “an account or profile on an electronic medium where users may create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages, or internet website profiles or locations that is used by an employee or an applicant exclusively for personal purposes.”

Request for Access Prohibited

The new Section 201-i of the New York Labor Law prohibits employers from requesting, requiring, or coercing any employee or applicant to do any of the following regarding personal social media accounts:

Disclose any password or other authentication information;
Access their personal account in the employer’s presence;
Reproduce any photographs, video, or other information contained in a personal account that was accessed through the above prohibited means.

Employers cannot discipline or penalize employees who refuse to provide any of the above information. Similarly, they cannot refuse to hire an applicant on that basis.

Permitted Access

The rules are different for work accounts. Employers may require employees to provide usernames and passwords for “accessing nonpersonal accounts that provide access to the employer’s internal computer or information systems.”

There are several additional exceptions for accounts and devices used for business purposes. For example, employee access to certain websites may be restricted while using company equipment. However, the employer must provide prior notice and the employee must agree to the restriction. Yet, as an “exception” to the general prohibitions, it’s not clear that the law actually imposes an affirmative obligation for employers to obtain such permission as a general matter.

The law also does not prevent management from connecting with employees through social media or viewing information that is voluntarily shared or publicly available through the social media platform.

Workplace Impact

Similar legislation was first introduced in the early days of social media well over a decade ago. In that sense, it is surprising New York has waited this long to get into the game. However, most employers have long since abandoned the types of measures that would be most likely to violate the new prohibitions. Nonetheless, it is important that you understand that there are now express parameters regarding employee personal social media accounts in New York.

For more employment law updates, sign up for the Horton Management Law email newsletter and follow us on LinkedIn.