Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 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.

May 17, 2019

Accommodating NY Employees with Disabilities (Webinar Recap)

On May 16, 2019, I presented a complimentary webinar called “Accommodating NY Employees with Disabilities”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

Qualifying Disabilities
“Undue Hardships”
“Interactive Process”
Leave as an Accommodation
and More!

Under federal, state, and local laws, many New York employers (all with at least 4 employees) have obligations to accommodate their employees’ disabilities. However, the requirements are not always straightforward. Often, employers must communicate with an employee to determine whether there are any reasonable accommodations that pose an undue hardship. This webinar identifies the underlying legal parameters to help you handle the process more effectively.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Accommodating NY Employees with Disabilities”

The Americans with Disabilities Act and New York Human Rights Law protect employees with disabilities. But accommodating NY employees with disabilities can be more difficult than it seems. It’s important to understand the requirements and limits of these laws. It’s also important to follow them carefully when working with individual employees regarding their medical conditions and their ability to perform the essential functions of their jobs.

In the webinar, we walk through the process of addressing an employee’s accommodation request and note some of the common mistakes. For example, an employee with a disability should not automatically lose their job when they’ve used up their 12 weeks of FMLA leave. Additional leave can be a reasonable accommodation. But whether it creates an undue hardship may depend on many factors.

Plus, do you know when you can and should get medical documentation about an employee’s disability before resolving an accommodation request? And, did you know, employees in New York City now must receive a written determination regarding accommodations?

This webinar will get you up to speed on these developments and best practices in this important area.

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May 11, 2019

Federal Employment Law Remedies

You’ve probably read news stories where employees win incredible amounts of money by suing their employer. The good news is lawsuits like those are rare. And most lawsuits end in settlement, where each side ends up compromising. However, if both parties have extremely different views and high confidence of winning, they might go to court. What employees have a chance of getting from lawsuits varies depending on not only the facts of the case, but also what laws they sue under. Here are the primary employment law remedies under several significant federal statutes.

Types of Employment Law Remedies

If courts find employers liable, they are responsible for paying damages to the employee. There are three main types of remedies: lost pay, compensatory damages, and punitive damages. Courts award employees lost pay and compensatory damages to make them “whole”. “Making whole” refers to placing the employee back in the position as if the employer hadn’t violated the law. This theoretically includes reinstatement to the employee’s former position, but more often lost pay and benefits. Reinstatement is rare. Courts will not reinstate an employee if they find the employee/employer relationship has become too hostile or the position is no longer available. By the time litigation reaches a verdict, much time has usually passed, with significant negative feelings between the parties. This makes reinstatement untenable in most cases.

Backpay and Front Pay

Lost pay can include backpay and front pay.

Backpay generally begins at the start of the adverse treatment and lasts until the judgment date or until the employee finds comparable employment. Backpay is calculated by factoring in salary or wages, interest, overtime, shift differentials, lost benefits, and potentially even raises the employee would have received. The court usually offsets the award by what the employee was able to or should have been able to earn through reasonable effort in alternative employment.

When reinstatement isn’t possible, courts might award “front pay” to compensate for future lost wages. Similar to backpay, front pay also includes compensation for lost benefits.

Compensatory Damages

“Compensatory damages” include additional monetary awards for out-of-pocket expenses (e.g., medical bills), as well as “pain and suffering” or “emotional distress.”

Under most federal employment laws, losing employers must also pay the employee’s attorney fees and litigation costs.

Punitive Damages

Sometimes courts can award punitive damages when they find the employer’s actions were especially malicious or offensive. Punitive damages seek to deter employers beyond the limits of compensatory relief.

Liquidated Damages

Liquidated damages serve a similar purpose. Where applicable, employees might receive a specific amount in addition to their lost pay as a further deterrence to employers. Often this results in employees receiving twice what they actually lost.

Employment Law Remedies under Specific Statutes

Title VII of the Civil Rights Act of 1964

Title VII law prohibits employment discrimination based on race, color, religion, sex, and national origin. It limits employees’ compensatory and punitive damages based on the size of their employer’s workforce.

Employer Size	Combined Damage Cap
15-100 employees	$50,000
101-200 employees	$100,000
201-500 employees	$200,000
Over 500 employees	$300,000

These caps do not apply to backpay and front pay awards.

Americans with Disabilities Act

The ADA forbids employers from discriminating against employees with disabilities. It also requires employers to provide reasonable accommodations to employees with disabilities in some cases.

These caps on compensatory and punitive damages also apply to the ADA.

Age Discrimination in Employment Act

The ADEA prohibits employment discrimination against employees age 40 or over.

Damages available under the ADEA are similar to those of Title VII and the ADA, except that employees cannot receive any compensatory or punitive damages. Instead, they can recover liquidated damages equal to the amount of backpay.

Equal Pay Act

The EPA prohibits employers from discriminating in compensation based on sex. Similar to the ADEA, the EPA allows recovery of lost pay and an equal amount of liquidated damages.

Fair Labor Standards Act

The FLSA sets the federal minimum wage, currently at $7.25 per hour. It also sets overtime pay requirements after 40 hours in a workweek for nonexempt employees.

Under the FLSA, employees can recover underpaid minimum wage and overtime, plus an additional amount of liquidated damages.

National Labor Relations Act

The NLRA establishes the right for employees of non-government companies to form unions. It also provides employees, whether unionized or not, the right to engage in concerted activity.

The NLRA only permits make-whole remedies. It does not allow punitive damages.

Damages	Title VII	ADA	ADEA	EPA	FLSA	NLRA
Backpay	✅	✅	✅	✅	✅	✅
Compensatory	✅	✅	✅	✅	✅	✅
Reinstatement or Front Pay	✅	✅	✅	✅	✅	✅
Liquidated			✅	✅	✅
Punitive	✅	✅
Attorney fees	✅	✅	✅	✅	✅	✅

What Does This All Mean for Employers?

Most importantly, employers should try to avoid violating employment laws in the first place. Despite variations between laws, all of these federal employment statutes have an array of serious consequences. If you are concerned about whether your company is in compliance, contact an experienced employment attorney.

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May 4, 2019

EEO-1 Compensation Data Update

In April 2019, a federal judge ruled that all employers required to file the annual EEO-1 report must include 2018 compensation data by September 30, 2019. The court ruling left some open questions for employers regarding the EEO-1 compensation data requirements. The U.S. Equal Employment Opportunity Commission (EEOC) has answered some of those questions, as we’ll explain here.

What Is the EEO-1?

U.S. employers with at least 100 employees and some smaller companies with federal government contracts must file the EEO-1 each year. The annual reports identify numbers of employees by job categories and demographic characteristics.

The EEO-1 job categories are:

Executive/Senior Level Officials and Managers
First/Mid-Level Officials and Managers
Professionals
Technicians
Sales Workers
Administrative Support Workers
Craft Workers
Operatives
Laborers and Helpers
Service Workers

Within these job categories, employers must provide the number of employees based on sex and race/ethnicity from among these options:

Hispanic or Latino
White
Black or African American
Native Hawaiian or Pacific Islander
Asian
Native American or Alaska Native
Two or more races

EEO-1 Compensation Data Requirement

In February 2016, the EEOC modified the Form EEO-1 to include wage and hours data beginning March 31, 2018. In 2017, however, the Office of Management and Budget (OMB) informed the EEOC that it was suspending the new pay data collection requirements pending further review. This prompted litigation.

The plaintiffs in a lawsuit against the government prevailed. The judge is requiring the EEOC to collect the new EEO-1 compensation data from covered employers for at least two years. One of these years is 2018. The judge allowed the EEOC to decide whether the second year would be 2017 or 2019. The EEOC has selected 2017 as the second year.

For now, it’s not clear whether the EEO-1 compensation data requirement will continue beyond this year. It is possible that the EEOC will formally revise the forms going forward.

What Do Employers Need to Know?

1. What Is the Deadline for the 2018 EEO-1?

The filing period for the traditional EEO-1 survey (without the compensation data) ends May 31, 2019. Covered employers must submit the standard job category and demographic surveys by that date.

However, companies will have to submit separate new reports with the EEO-1 compensation data.

[Click here to file your EEO-1 or get more information directly from the EEOC.]

2. When Can We File the EEO-1 Compensation Data?

The EEOC expects to open filing for the new EEO-1 compensation data in mid-July 2019. When available, filers apparently will need to submit wage and hour information for both 2018 and 2017.

3. What Compensation Statistics Will We Need?

Employers will need to submit W-2 wage data and hours worked for employees within 12 specified pay bands:

<$19,239
$19,240-$24,439
$24,240-$30,679
$30,680-$38,999
$39,000-$49,919
$49,920-$62,919
$62,920-$80,079
$80,080-$101,919
$101,920-$128,959
$128,960-$163,799
$163,800-$207,999
$208,000+

Employers will report wages earned based on W-2 “Box 1” year-end earnings and hours worked.

Hours worked will be actual hours for non-exempt employees. For exempt employees, employers can report an estimate if they do not maintain actual time records. The estimate will be computed at 40 hours per week for full-time exempt employees and 20 hours per week for part-timers. Employers will report aggregate hours for all employees in each pay band and job category by ethnicity.

Employer Concerns

One concern many employers have is how much hassle it will be to satisfy this new filing requirement. That answer depends on factors like the size of the workforce and sophistication of the payroll system. Some companies will be able to generate the data quickly from computers. Others will have to analyze individual employee records to compile the necessary EEO-1 compensation data.

Another question is how the EEOC will use this new information. For various reasons, the limited aggregated payroll data might not give an accurate snapshot. Yet, the EEOC may use the numbers to evaluate potential discrepancies along gender, racial, or ethnic lines. Although the EEOC probably will not make every employer’s EEO-1 compensation data public, the reports could come out in litigation. This may include use by private plaintiffs whose attorneys could obtain the data from the EEOC by subpoena, for example.

Don’t Wait for July!

Employers who will have to file the new EEO compensation data should not wait until July to prepare. Companies should at least evaluate their ability to generate the information necessary when the filing period opens. Plus, employers should start analyzing whether the data is going to paint a picture that might cast their compensation practices in a bad light. If so, they might want to review and modify their practices or start preparing the explanation for why the EEO-1 report is misleading, as many will be given many statistical limitations in the way employers must report on wages.

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