Tag: paid family leave

June 15, 2019

Calling Your Employment Lawyer — Pregnant Employee

I’ve been counseling employers for almost 14 years. One thing that’s become clear over that time is that no one wants to have to call their employment lawyer! But the truth is many companies would be better off if they called more often. It’s usually much cheaper to find out the law and best approach to an employment situation before it leads to litigation or other disputes. This is definitely true when you’re dealing with a complex scenario involving a pregnant employee, for example.

So, what does a call with an employment lawyer sound like?

My actual conversations with clients are confidential, of course. But I can summarize the tone from 1000s I’ve had over the years by way of example. The facts and circumstances of this scenario involving a pregnant employee are purely hypothetical and should not be followed as guidance for any actual situation. Most likely, I would have more background information about the employer before taking this call. Local and state laws also vary and could alter any legal considerations.

“We Have This Employee. . . .”

Client: “Hi, Scott.”

Lawyer: “Hi. How are you? Oh, I know, you’d be better off if you weren’t calling me.”

Client: “Well, nothing personal.”

Lawyer: “No, I get it. None of my clients ever want to be speaking to me about work. It’s the nature of my business. Anyway, how can I help?

Client: “We have this employee. She’s not really working out. She’d had performance issues for a while, and we’d like to move on . . . . But . . . .”

Lawyer: “Yeah, there’s always a ‘But’!”

“She’s Pregnant”

Client: “Afraid so, or I wouldn’t be calling. Before we had a chance to do anything about her performance issues, she told us last week she’s pregnant.”

Lawyer: “I see, well congratulations to her, but you’re worried about trying to let a pregnant employee go?”

Client: “Yes, but, that’s not everything. She had also filed a harassment claim against a co-worker a few months back. And she’s still angry that we didn’t fire the guy she filed it against.”

Lawyer: “Alright. Let’s try to work through this. First, how long has she been working there?”

Client: “Only nine months. She’s our receptionist and also does some of our social media.”

Lawyer: “So, she’s not FMLA eligible yet, but might be eligible for New York Paid Family Leave. Is she full-time?

Client: “Yeah, she works 40 hours. At least, she’s supposed to be working. She spends most of her time on Facebook.”

Lawyer: “You mean doing personal things, not managing the company’s social media.”

Client: “Right. But that’s not the real problem. We should do a better job of policing that and re-directing her. But the bigger problem is that she also answers phones and greets people who come into the office. But her personality is hit or miss. She’s not rude, exactly, but not always friendly either. Plus, she gets messages wrong, forgets to pass them along, etc. We’ve had a few complaints since she started.”

Lawyer: “Has she said when the baby is due?”

Client: “About 3 months from now.”

Lawyer: “So, at that point, she might be eligible for FMLA leave too. Did she get the paperwork on that?”

Client: “Not yet, but that’s one thing we needed direction on. As you know, we have over 50 employees, so we do have people eligible for FMLA. But since she hasn’t been here a year yet, we didn’t know how to handle it.”

Lawyer: “If the leave will begin after she has been there for a year and she meets the other requirements–so if she will have worked 1,250 hours over the past year when her leave starts–then she would qualify for FMLA leave. So you should probably at least give her the FMLA paperwork at this point to avoid a technical violation there.”

Client: “Does that mean we have to keep her on until after her 12 weeks expires?”

Lawyer: “Not necessarily. Even if she becomes eligible for FMLA leave, you don’t have to retain her if you have other legitimate grounds to end her employment. But, of course, it can’t be because of her pregnancy or leave. And even if it isn’t, she could claim it is discriminatory to let her go.”

Client: “So, are we better of waiting until she has the baby and then fire her after she comes back?”

Lawyer: “Not necessarily. That could still be discriminatory or retaliatory.”

“What Should We Do?”

Client: “Okay, you’re the expert. What should we do with her?”

Lawyer: “I know you don’t want to hear it, but like so many of these situations, it depends on various factors and considerations. But it comes down to why you’ve kept her on this long and now want to let her go. If it’s at all related to the pregnancy, then you probably shouldn’t do it. Maybe she’ll take the leave and then not come back, but if she wants to come back, you’d need to let her.”

Client: “We don’t have a problem with her being pregnant. If she were doing her job, we’d be happy to let her take the leave.”

Lawyer: “Then you have to be able to explain why you’re considering letting her go now. Did anything happen recently that’s of particular concern?”

Client: “Remember I mentioned she filed a harassment complaint against a co-worker?”

Lawyer: “Yes. We needed to get back around to that too.”

Client: “Yeah. She claimed a guy who has worked here for 20 years was hitting on her whenever he walked in the building. Now, he’s a salesman who works remotely, so he’s only in a few times a month. She didn’t make any extreme allegations, just that he was too flirty. We investigated it and directed him to stop, and he has.”

Lawyer: “Okay. But has become relevant again?”

Client: “Yes. We need to promote this guy to a director of sales position where he will be in the office full-time. So he’d walk past her every day. Probably multiple times every day. But he refuses to work in the building as long as she’s the receptionist.”

Lawyer: “Is that why you want to let her go now?”

Client: “That’s not the only reason. We know we can’t fire her because the guy she complained about doesn’t want to work in the same building with her. It’s just that we have had these performance issues and they’re not getting better. Eventually, we’d have to let her go. But between the pregnancy and trying to promote the sales guy, we don’t know what the best approach is.”

Lawyer: “Right. I see you’re trying to do the right thing, but there seems like landmines in every direction.”

Client: “Pretty much. So that’s why we called you.”

“Any Alternatives?”

Lawyer: “I understand. Glad you did. Now, let’s see. . . . Just by chance, are there any other open jobs that she might be able to do without the same performance issues?”

Client: “We could try to make her an administrative assistant.”

Lawyer: “But it sounds like she’s already had problems with messages and communication. Would that be a factor in those jobs?”

Client: “Yes. It would just move her from the front desk and maybe solve the problem with the sales guy.”

Lawyer: “I don’t really want you to create new problems in trying to solve this one. If we figured out the right approach, would you consider offering her a severance package?”

Client: “We might be able to pay her a month’s pay and continue her health insurance. I guess that would become an issue for her with the baby and all.”

Lawyer: “Good point. So she’s taking the company’s insurance?”

Client: “Yes. She is. She is married, but they have family coverage through us. He might have it available at work too. I don’t know. Maybe ours is a better deal.”

Lawyer: “Sure. That could be an issue. If he has coverage, then losing yours might not be as bad. But she’s looking at some disability and PFL benefits coming up when she has the baby too if she were still employed. And if he doesn’t have insurance available, they might have to go on COBRA coverage. She would probably get unemployment.”

Client: “Yeah. We wouldn’t contest the unemployment.”

Lawyer: “Okay, how bad has her performance been? Has it gotten any worse lately?”

Client: “It’s just ongoing mistakes. No single recent incident.”

“Severance Package?”

Lawyer: “Alright, overall, I’d say there is some risk of some kind of pregnancy or even retaliation–for the harassment complaint–claim if you fire her now. But that doesn’t necessarily diminish as time goes on. Maybe it would get easier if she does something really bad, but you don’t want that either for operational reasons. Some options include putting her on a formal performance improvement plan and seeing how that plays out or just having a conversation with her now pointing out the performance problems and noting that you have to let her go but will offer a severance package. There’s no perfect solution. If she says no to the severance and you fire her, then she might make a claim.”

Client: “But if she agrees to the severance, then we’d get a release and she couldn’t sue us?”

Lawyer: “Yes, we’d make the severance contingent on her signing a release.”

Client: “Okay, I got it for now. I’ll go back and speak to the managers involved. I’ll probably be giving you another call once we decide how to handle this.”

Lawyer: “Sounds good. I’ll be here. Hopefully, there’s a way to make this work out okay for everyone.”

Client: “Hope so. Thanks.”

Some of these calls lead to a straightforward solution. Others, like this hypothetical one, involve balancing risky alternatives. But understanding the risks better allows better decisionmaking and helps avoid obvious missteps.

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February 8, 2018

Tax Reform Affects Sexual Harassment Settlements and Employee Benefits

On December 22, 2017, President Donald Trump signed sweeping tax reform legislation. The controversial tax bill includes many changes that directly affect the employment relationship. These range from sexual harassment settlements and paid family and medical leave to reimbursed employee expenses and retirement plans.

Although I am neither a tax lawyer, nor an accountant, I offer a synopsis of these changes here.

Tax Deductions for Sexual Harassment Settlements

In response to the ongoing #MeToo movement, Senator Bob Menendez (D-NJ) introduced a new provision to the Internal Revenue Code’s section on tax deductions for ordinary trade or business expenses. The provision prohibits deductions for:

any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement; or
attorney’s fees related to such a settlement or payment.

The tax reform bill doesn’t expand on the meanings of the terms used in this new provision. That leaves its application open for debate, at least until the IRS issues guidance and begins to apply the restriction to actual returns.

Clearly, this new tax code provision will affect settlements of employment claims. This may include both cases of an asserted claim involving sexual harassment or sexual abuse and those where the employer seeks a general release to cover all employment-related claims. In the latter scenario, the employee may not have specifically alleged sexual harassment/abuse. But a broad release would typically reference Title VII and similar state laws that could encompass sexual harassment claims. Employers (and employees) will need to weigh the trade-off between release coverage, confidentiality, and tax deductibility.

Employer Credit for Paid Family & Medical Leave

Employers can now claim a tax credit starting at 12.5% of wages paid to qualifying employees on family and medical leave. Wages paid must be at least 50% of the employee’s normal wages. The credit increases by 0.25% for each full percentage point by which the employer’s wage payment exceeds 50% of the employee’s normal wages, up to a maximum 25% credit.

To be eligible to take the credit, the employer must provide all qualifying full-time employees at least two weeks of paid family and medical leave each year under a written policy. The employer must also provide part-time employees leave on a pro-rata basis.

Qualifying employees are only those who have been employed for one year or more and whose wages do not exceed $72,000 (in 2018, indexed for inflation).

The credit is limited to 12 weeks of paid leave per employee in a tax year. It is only in place for 2018 and 2019 and does not apply to paid leave mandated by state or local law.

Certain Reimbursed Expenses No Longer Excluded from Employee Income

The 2017 tax reform bill repeals certain exclusions from employees’ taxable income. One such exclusion previously applied for certain moving expenses reimbursed by their employer. Another permitted employees to exclude up to $20 per month of qualified bicycle commuting expenses reimbursed by their employer. Under the new tax law, neither of these exclusions apply between January 1, 2018 and December 31, 2025. Subject to future Congressional action, these exclusions are scheduled to return in 2026.

The reforms also indefinitely eliminated employer deductions for certain transportation benefits provided to employees. Specifically, these deductions applied to up to $255 per month for employee mass transit commuting and parking and up to $20 per month in bicycle costs.

There are also changes to tax treatment of qualified equity grants to employees, employee achievement awards, and length of service award plans.

Retirement Plans

The tax changes also affect employer-sponsored defined contribution plans. It gives employees more time to roll over loan balances to an IRA following plan termination or separation from employment. Under the old rules, employees had 60 days to avoid having the loan treated as a distribution. They now have until the due date for filing that year’s tax return.

Other earlier drafts included additional changes that were ultimately dropped. These included reducing the age for beginning in-service distributions from defined benefit and state and local governmental plans to 59 1/2 and changing rules regarding hardship distributions.

Health Care

The new tax bill eliminates the penalty connected to the Affordable Care Act’s individual mandate as of 2019. The penalty still applies to individuals who haven’t maintained sufficient health insurance coverage in 2017 and 2018.

It also reduces the threshold for claiming itemized deductions for qualified medical expenses from 10% to 7.5% of income in 2017 and 2018. The 10% threshold returns in 2019.

Response to Employment-Related Tax Reform Issues

Most of these issues do not require employers to take action (other than paying taxes differently). However, because they will affect taxation of both the employing organization and the employees, questions are likely to arise. Proactive employers should consider the tax impacts and plan accordingly.

Businesses should seek further guidance from appropriate professionals in considering their approach in response to these developments. Often that will mean accounting or tax law professionals. But it will also include attorneys involved in settling disputes with employees, especially (but not only) those involving sexual harassment allegations. An experienced employment lawyer can also assist in preparing a credit-qualifying paid family and medical leave policy.

The IRS indicates that it will provide updates and resources about the new tax reforms here.

January 3, 2018

New York Employment Law by the Numbers

In an earlier post I listed some of the most important numbers pertaining to federal (U.S.) labor and employment laws. This time we’ll look at the numbers that stand out specifically for New York employment law compliance.

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1 – Employee threshold for many employment laws

As with federal laws, many aspects of New York employment law apply to employers with as few as one employee. This includes State minimum wage/overtime, wage payment, worker’s compensation, disability benefits, paid family leave, and sexual harassment laws.

4 – New York Human Rights Law prohibits discrimination

New York employees of employers with at least 4 employees are protected by New York’s employment discrimination laws. This is a much lower coverage threshold than similar federal laws. They typically don’t apply until an employer has at least 15 or more employees. The New York Human Rights Law prohibits discrimination on the basis of age, sex, sexual orientation, religion, race, national origin, disability, and predisposing genetic characteristics. It also protects employees from discrimination based on familial status, marital status, military status, and domestic violence victim status.

Note: The New York Human Rights Law prohibits all employers, with a few as one employee, from engaging in sexual harassment.

6 – Statute of limitations for wage claims, in years

New York employees can file claims for unpaid or underpaid wages going back as far as six years. This is much longer than the 2- (sometimes 3-) year statute of limitations under the federal Fair Labor Standards Act.

8* – Annual New York Paid Family Leave allowance, in weeks

In 2018, eligible employees may take up to 8 weeks of leave under the New York Paid Family Leave Program. In 2019 the maximum leave period increases to 10 weeks. It increases again in 2021, to 12 weeks.

$10.40 – Minimum wage for Upstate employees

New York’s minimum wage requirements depend on geographic location and employer size. On December 31, 2017, the base minimum wage for all employees outside of New York City and Nassau, Suffolk, and Westchester Counties increased to $10.40 per hour.

Click here for more details, with charts, about current and future minimum wages throughout New York State.

18 – Age at which New York Human Rights Law begins to prohibit age discrimination

Unlike the federal Age Discrimination in Employment Act (ADEA), New York’s employment discrimination law prohibits age discrimination against employees in both directions. The ADEA only protects employees 40 years old or older from suffering adverse employment actions because they are too old. However, the New York Human Rights Law allows employees 18 or older to claim discrimination either because they are too old or too young.

20 – Weekly hours parameter for New York Paid Family Leave

An employee’s eligibility for New York Paid Family Leave depends on how many hours they are regularly schedule to work in a week. Employees regularly scheduled to work at least 20 hours per week become eligible once they have worked for their employer for 26 consecutive weeks. Employees regularly scheduled to work less than 20 hours per week become eligible once they have worked on 175 days for the employer.

25 – New York WARN notice triggering events

The New York State Workforce Adjustment Retraining Notification Act (WARN) requires employers to give written notice before mass layoffs, plant closings, and relocations that will cause employment loss for at least 25 employees, sometimes more.

30 – Minimum length of meal period for most employees, in minutes

New York labor law requires that all employees who work at least 6 hours in a shift (sometimes less) be off duty for a meal period of at least 30 minutes. Additional time may be required in some cases.

For more details, see Got Lunch? A Primer on the New York Meal Period Requirements.

50 – New York WARN covered employer

Non-governmental employers with 50 or more employees within New York State are potentially subject to New York WARN notice obligations.

90 – Days in advance New York WARN notices must be issued

This is longer than the federal WARN Act’s 60-day notice period. The employer must notify affected employees (and their unions, if applicable) and certain government officials. There are exceptions to the notice obligation. If circumstances require the employer to act suddenly, the employer usually must give as much notice as possible.

$780 – Required weekly salary for some New York overtime exemptions (Upstate)

New York’s administrative and professional exemptions from the State’s minimum wage and overtime rules require that employees receive a minimum weekly salary. As with the minimum wage, the salary requirement depends on location within the State and size of the employer. As of December 31, 2017, the minimum salary for these exemption (outside of NYC, Nassau, Suffolk, and Westchester) is $780 per week.

Click here for more details, with charts, about current and future salary requirements throughout New York State.

New York Employment Law Is Complex

These numbers only help demonstrate some of the compliance obstacles New York employers face. And, unfortunately, New York employment law changes frequently. Plus, many New York employers must also satisfy a maze of federal employment laws at the same time.

One great way to keep on best practices and developments regarding New York employment law is through my monthly newsletter. It’s easy to sign up for it here!