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.
On January 23, 2019, I presented a complimentary webinar called “Don’t Forget to WARN.” 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:
New York and Federal WARN Acts
Plant Closings vs. Mass Layoffs
Notice Timing, Contents, and Recipients
Nuances, Exceptions, and Penalties
Employers preparing to layoff or terminate sufficiently large numbers of employers usually must issue written notices in advance. The New York WARN Act is even more burdensome and restrictive than the federal law. In some cases, New York employers must comply with both. Many other states also have their own similar laws.
The New York State WARN Act applies to private companies with at least 50 employees in New York. Covered employers might have to issue notices at least 90 days before laying off or terminating 25 or more employees, depending on the circumstances. Some exceptions apply.
These laws are very complex, with many nuances and gray areas. Here are some questions we’ll answer:
When do we have to give notice?
What information must the notices contain?
Do part-time employees count?
How much does it cost if we don’t comply?
What if I’m selling or buying a business?
Although you’ll ultimately want to work with an experienced employment lawyer to determine your WARN compliance obligations, this webinar will get you oriented to know when you might have a notice obligation.
In today’s workplace, there can be up to four generations working together on a project. While this collaboration is an excellent opportunity for generating new perspectives, conflicts can arise as different personalities clash. Members of the same generation grew up with similar values and experiences and thus tend to perform best under particular management styles. Worker cohorts also tend to share preferences for compensation and work environments, raising implications for employers in structuring their organizations.
Although members of the same generation might generally share values and experiences, employers must be careful not to discriminate or stereotype individuals based on their age. Here we’ll take a look at generational preferences as well as the laws employers must be aware of to avoid potential legal liability.
Working Generations
Sociologists don’t always agree on the birth years establishing the separate generations. However, they and popular culture tend to recognize generations spanning approximately 15-20 years.
Here’s a chart showing the relative portion of the U.S. workforce falling into each of the recognized working generations:
Baby Boomers
The members of the Baby Boomer generation are loosely defined as being born anywhere from the mid-1940s to the early 1960s. They are referred to as “baby boomers” due to the increase in birth rate during these years. Baby Boomers share the experiences of the economic boom in the aftermath of WWII, the development of color television, the Cold War, the first walk on the moon, and the Vietnam War. They also lived through several civil rights movements.
In the workplace, Baby Boomers are seen to value company loyalty, strong work ethics, a steady career path, and compensation. Baby boomers are currently retiring at a rate of 100,000 employees per day. However, due to the timing of the last recession, many cannot afford to retire and are instead seeking part-time jobs for an ongoing income stream. With advances in healthcare, the overall U.S. population is growing older, with projections for the population of older Americans to double by 2060. According to the Bureau of Labor Statistics, “As the baby-boom generation ages, the share of workers age 55 and older—a cohort with a low labor force participation rate—is projected to grow to 24.8 percent in 2026. This share is up from 22.4 percent in 2016 and 16.8 percent in 2006.”
Generation X
Generation X (Gen X) follows the Baby Boomer generation and precedes the Millennials. They were born between the mid-1960s and the early 1980s. Generation X members are also sometimes referred to as “baby busters” because of the drop in the fertility rate during these years. Commonly shared experiences include living through the 9/11 terrorist attacks and the widespread adoption of the Internet and cellular phones.
These individuals grew up during a time when women, especially mothers, were increasingly participating in the workforce. This generation (on the whole) values work-life balance more than previous generations. Members of this generation also value stability, personal advancement, and job satisfaction. In the workplace, Generation X members are often considered to be independent, resourceful, and adaptable.
Millennials
Millennials (or Generation Y)/Gen Y) are currently the largest generation active in the American workforce. Members of this group were born between the early 1980s and mid-late 1990s. Millennials often engaged in more precarious work in the aftermath of the Great Recession. This generation doesn’t remember offices without computers and has been characterized as having increased familiarity with technology, communications, and media.
In the workplace, Millennials generally prefer a flat corporate culture, an emphasis on work-life balance, and a socially conscious workplace. Millennials search for environments with meaningful work and opportunities to express creativity. This group benefits the most from immediate feedback. Millennials value free flow of communication and close relationships with supervisors. They are more likely to switch careers than previous generations.
Millennials are the most diverse generation. Due to immigration, this population is increasingly likely to be born outside the United States with a first language other than English. By 2020, Millennials should make up half of the global workforce.
Generation Z
The members of Generation Z (Gen Z) were born from the mid-1990s into the 2010s. They are deeply familiar with technology and social media, having never known a world without mobile phones and digital music and videos. Many came of age during the Great Recession, which has resulted in them being independent and entrepreneurial. Members of this generation typically have a more global perspective and comfort with technology-based interactions. However, they still value person-to-person contact in the workplace. Although Generation Z has not yet gained much work experience, they do tend to have large networks as a result of omnipresent social media. They highly value personal fulfillment in their careers.
What Unites These Generations in the Workplace?
There are several values that employees universally appreciate. In the workplace, individuals of all ages value respect, communication, mentorship opportunities, positive feedback, exchanging ideas, and being able to see the big picture. Employers should keep these values in mind when managing a multigenerational workplace, but might need to adapt their approaches based on individual or subgroup differences
Beware: Age Discrimination
Passed in 1967, the Age Discrimination in Employment Act (ADEA) is a federal law that prohibits age-based discrimination in employment. This law covers employees and job applicants age 40 and older and does not protect younger individuals from preferential treatment toward older workers. The ADEA covers employers with 20 or more employees, employment agencies, government employers, and unions.
Many states also have laws prohibiting discrimination based on age. Some, unlike the ADEA, protect employees even younger than 40 years old. The New York State Human Rights Law is one such law. It protects employees and applicants from discrimination based on numerous protected categories, including age beginning at age 18.
Age discrimination claims can arise out of hiring, firing, promotion, compensation, or any other aspect of employment. This includes harassment.
Examples of age discrimination could include:
Assuming only younger employees can handle technology;
Pressuring older employees to retire;
Not allowing an older employee to pursue new training; or
Refusing to hire or promote an otherwise qualified employee based on age.
Although the above examples seem relatively straightforward, sometimes subtle actions can lead to discrimination claims. If employers have any questions, they should consult with an experienced employment lawyer.
Special thanks to Erin Killian for her substantial contributions in drafting this article. As of this writing, Erin is a 2L student at the University at Buffalo School of Law and law clerk at Horton Law.
The federal Fair Labor Standards Act (FLSA) covers most employers in the United States. It requires them to pay minimum wage and overtime to most employees, subject to some exceptions. In addition to the general “White Collar” exemptions, the FLSA also establishes some industry or job-specific exemptions. One of these is the “motor carrier exemption” from the FLSA overtime pay requirements.
The FLSA’s overtime provisions do not apply to employees subject to the motor carrier exemption found in section 13(b)(1) of the act. This exemption applies only to certain employees subject to maximum hours requirements set by the Secretary of Transportation. These are employees who are:
Employed by a motor carrier or motor private carrier;
Drivers, driver’s helper, loaders, or mechanics whose duties affect the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce; and
Not covered by the small vehicle exception.
What Is a “Motor Carrier”?
An employer qualifies as a “motor carrier” if it provides motor vehicle transportation for compensation.
“Transportation” includes movement of either passengers or property, and services related to that movement.
The exemption also applies where the employer is a “motor private carrier”. These are “persons other than motor carriers transporting property by motor vehicle if the person is the owner, lessee, or bailee of the property being transported, and the property is being transported for sale, lease, rent, or bailment, or to further a commercial enterprise.”
In applying the motor carrier exemption, it’s often not necessary to distinguish between “motor carriers” and “motor private carriers.”
Which Employees Qualify?
Drivers, driver’s helpers, loaders, and mechanics might qualify for this exemption. However, even workers in these categories must actually perform “safety-affecting activities” on a motor vehicle used for transportation on public highways in interstate or foreign commerce. They need not do that work all the time. It can be just part of their jobs, as long as it’s not a trivial or de minimis aspect of their duties.
The transportation involved must include interstate commerce. This usually means that the transportation must (1) cross state or international lines or (2) connect with an intrastate rail, air, water, or land terminal and continue an interstate journey of goods that have not come to rest at a final destination.
The safety-affecting employees do not have to travel out-of-state themselves. The exemption can still apply to an employee so long as the employer is involved in interstate commerce and the employee could reasonably be expected to make an interstate trip or work on a motor vehicle that is safety-affecting.
The motor carrier exemption applies for 4 months from the date the employee last could have been called on to or actually did engage in a motor carrier’s interstate activities. An employee continually involved in such activities retains the exemption perpetually (unless/until changing to non-exempt work for a period of 4 months or more).
Small Vehicle Exception
Yes, there is a critical “exception” to this “exemption”. If the exception applies, then the employer must pay overtime for time worked beyond 40 hours in a week even to employees who would have otherwise met the exemption requirements.
The exemption does not apply in any week where the employee’s work as a driver, driver’s helper, loader, or mechanic affecting the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce includes work on small vehicles weighing 10,000 pounds or less.
But wait, there’s even an exception to the exception (to the exemption)!
The small vehicle exception does not apply if the small vehicles involved only include vehicles:
designed or used to transport more than 8 passengers, including the driver, for compensation;
designed or used to transport more than 15 passengers, including the driver, and not used to transport passengers for compensation; or
used in transporting hazardous materials, requiring placarding under Department of Transportation regulations.
In other words, weight isn’t the only factor in determining whether a vehicle is “small.” Its function is also relevant.
When an employee does work on a small vehicle, the exemption could be lost for that week even if the employee also works on other “larger” vehicles in the same week. (Note: this issue is still somewhat unsettled as a matter of law.)
Who’s Not Exempt?
The motor carrier exemption does not apply to employees of non-carriers. This includes commercial garages and other companies that maintain and repair motor vehicles even if motor carriers own or operate the vehicles. It likewise does not apply to employees of companies that lease or rent motor vehicles to carriers (unless the employer itself is separately also a motor carrier).
The motor carrier exemption also does not apply to employees not directly working in “safety-affecting activities”. Thus, dispatchers, office personnel, and even loaders who are not responsible for proper loading do not fall under the exemption. In other words, they’re eligible for overtime pay (unless a different exemption applies).
Don’t Forget State Law
Remember, the FLSA is a federal law. It applies throughout the United States. But there are also state laws that address minimum wage and overtime requirements. As with other FLSA exemptions, the motor carrier exemption might not excuse an employer’s state law overtime obligations. Accordingly, motor carriers must separately review and apply any state overtime laws in tandem with the FLSA to avoid liability for unpaid overtime.
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