Tag: vacation

Employee Leave in New York Cover Slide.pdf

Employee Leave in New York (Webinar Recap)

On October 17, 2024, I presented a complimentary webinar entitled “Employee Leave in New York”. 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:

  • FMLA and Paid Family Leave
  • Workers’ Compensation & Disability
  • Leave as a Reasonable Accommodation
  • Leave Management Best Practices

and much more!

New York employers have numerous laws to follow regarding employee leave. From the federal FMLA and ADA to the state’s paid sick leave and paid family leave laws, the list is long and complicated. We break down the key elements of these leave statutes and what employers should be paying the most attention to for compliance purposes.

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

Why You Should Watch “Employee Leave in New York”

Do you know how FMLA and PFL interact? Ever needed to fire someone who was out on medical leave?

Anyone with responsibilities for managing employee leave in New York should watch this webinar. The complexities of managing leave have only increased with recent changes to laws like New York’s Paid Family Leave, updated sick/safe leave requirements, and prenatal leave. Plus, everyone can use a refresher on the complex FMLA. Understanding how to navigate these overlapping rules is critical to ensuring compliance and avoiding costly legal pitfalls.

Whether you’re new to these issues or looking for an update on the latest changes, this session will provide clear, practical guidance to help you manage leave policies effectively. So, don’t miss this opportunity to ensure your organization stays compliant with New York’s ever-evolving employee leave laws.

Don’t Miss Our Future Webinars!

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Employee Side Hustle

Your Employee Has a Side Hustle

Browse the internet these days, and you can find many articles extolling the virtues of allowing employees to have a side hustle. Ask many established employers, however, and the response will often be less enthusiastic. Some will ask, “a what?” Others will instinctively respond, “Bad for my business.” As an employment lawyer, it’s not my job to weigh in on either side of this debate. But I will take on the task of describing some potential legal implications and considerations that arise when employees have outside business interests.

What Is a Side Hustle?

Many companies still have “no moonlighting” policies. These forbid employees from working outside of their “day job.” However, the prevalence and ease of having a second income stream might be at all-time highs.

“Side hustle” itself isn’t a new term. Merriam-Webster reports that it entered our vocabulary in the 1950s, and generally refers to “work performed for income supplementary to one’s primary job.”

Modern and emerging usage focuses more specifically on the nature of the supplementary work. One recent description explains:

“A side hustle is not the same as a part-time job. While a part-time job still entails someone else (your employer) calling most of the shots (including hours worked and what you’ll be paid), a side hustle gives you the freedom to decide how much you want to work and earn.”

Employee Policies

Let’s move back to where the employer does call the shots. You have a business to run and need employees to operate it. While they’re working for your company, you have to exercise reasonable control over your workers. You are, after all, responsible for what they do on the job. This includes both the outcome of their work (productivity, customer satisfaction, etc.) and legal liability (harassment, personal injury, etc.).

Most companies with more than a few employees have an employee handbook of some kind. This manual contains a number of policies about what employees can and can’t do. Let’s take a closer look at some of these policy areas that relate to your employee’s side hustle.

Moonlighting

Moonlighting has typically meant having a second job outside of work. This more often meant working for a second employer. But, as mentioned, is now increasingly likely also to encompass an employee’s self-employed side hustle.

Not all of these policies are absolute. Some are limited to competitors, customers, or other restrictions related to a potential conflict of interests. Employers should revisit their moonlighting policies in consideration of the side hustle proliferation.

Conflicts of Interest

With or without specific moonlighting policies, many employers have a conflicts-of-interest policy. These policies might encompass, but often exceed, references to outside jobs. They might, accordingly, be both more and less likely to cover concerns related to employee side hustles. While unlikely to use the term, these policies are broader in scope of activity and thus not limited to outside “jobs.” At the same time, they usually don’t address outside activities that don’t relate to the company’s business.

Confidentiality

Most handbooks contain policies that prohibit employees from disclosing confidential company information or using it for personal gain. These policies should limit how employees use proprietary data, often including customer information, in their side hustle. But few of these policies were written with the current landscape of outside employee business interests in mind. So, again, now would be a good time to review your policies with modern realities in mind.

Vacation and Other Leaves

Many employers, of course, provide employees with vacation, sick leave, personal leave, or other forms of paid-time-off (PTO). Employee handbooks often address the conditions for these leaves. Sometimes these policies preclude the use of PTO for outside work or other business pursuits. But many policies are silent in that area. If your employees do have side hustles, they might decide to use vacation time to work on their personal venture. Or, in any event, they probably will not entirely abstain from working their side hustle while on vacation. Consider how those scenarios impact your business and make policy revisions, if necessary.

Computer Use & BYOD

Do your employees use computers in their jobs? Do they have smartphones (personal or company-owned) in hand during their workday? Employers usually address related issues in their handbooks or policy manuals. Some of these policies permit incidental personal use. Few specifically address an employee’s side hustle. If there is language regarding outside business ventures during work time, does the company monitor or enforce those restrictions? Striking the right balance for your workforce is important.

Bring on Employment Laws

In addition to the company’s policies, employers also must stay within the boundaries of numerous labor and employment laws. I don’t think I’m going too far out on a limb in suggesting that most of these laws came into being without specific consideration of the modern side hustle. Many of them pre-date the internet, which is the platform for much of the side hustle realm. And even newer employment laws tackle a specific concern without fully considering the workplace and societal implications.

Here are just a few examples of federal employment laws that could cause headaches when balancing employer and employee interests regarding outside business interests.

FMLA and ADA

The Family and Medical Leave Act (FMLA), directly, and Americans with Disabilities Act (Act), indirectly, give many employees the right to take time off from work for medical and certain other situations. These laws do not specifically address the extent to which employees may engage in outside employment or business activities while on protected leave. Although courts have weighed in on a case-by-case basis, employers still face a gray area when employees on leave continue to pursue their side hustles.

It is one thing for an employee on FMLA leave to spend full days running a company store. Then their employer (from whom they’re taking leave) might have the right to terminate them for FMLA abuse.

But what if an employee recovering from surgery continues to post on a personal (for-profit) blog and manage related social media accounts? Do they lose their leave protection?

Harassment

Federal laws prohibiting harassment of employees include Title VII of the Civil Rights Act of 1964 (race, color, sex, religion, and national origin), the ADA (disability), the Age Discrimination in Employment Act (ADEA), and the Genetic Information Nondiscrimination Act (GINA). Under these laws, employers must avoid a hostile work environment based on protected characteristics. This obligation does not conveniently cease once an employee steps outside the employer’s facility.

There have been many cases where employees complain of harassment because co-workers treated them inappropriately outside of work. Whether this conduct creates legal liability for the employer depends on the circumstances. But it is at least possible that an individual could create a hostile work environment for co-workers through their side hustle.

For example, despite the platforms’ user guidelines, YouTube or Instagram accounts are not always workplace friendly. People might resort to more colorful language or less conservative clothing through these channels. They might generally relax their inhibitions from what they demonstrate in their office or factory job. And co-workers might find their conduct offensive along various lines. This could affect their ability to work side-by-side Monday through Friday. Even where not raising a legal concern, productivity could suffer.

Minimum Wage and Overtime

What happens when an employee’s side hustle supports their employer’s business? At some point, it could become difficult to draw the line between the employment relationship and the outside activity. This might raise questions of whether the employer must compensate employees for time worked on their “personal” ventures.

Suppose you own a boutique clothing store and your employee has a popular fashion vlog. These could be entirely separate businesses. But if your employee repeatedly references your store (presumably in a positive way) and starts driving customers to the store, is the employee working for you while vlogging? The devil is probably in the details here. But it’s a question worth asking. Otherwise, you might run afoul of minimum wage or overtime requirements under the Fair Labor Standards Act. Or, at least, you might not be keeping adequate records of the employee’s time worked (by not counting time spent vlogging about your store).

Here’s another example. Your employee does landscaping jobs after work and on the weekends. He’s employed by your company as a facilities manager. If you pay him to mow the grass around the company offices, does that time count toward overtime? It might, depending on the nature and extent of his landscaping “business” and the scope of his normal job tasks. And it might be an open question even if the employee’s job position is entirely unrelated to any physical labor.

Plan Ahead

The side hustle is a real phenomenon that is not likely to go away soon. Employees of all ages are looking for supplemental income outside of their traditional jobs. Employers should review their policies and evaluate whether the boundaries they impose go too far or not far enough in guiding employees with outside business interests. A proper balance for your workplace might not only serve as a competitive advantage, but could also help you avoid legal compliance problems down the road.

 

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Vacation Pay New York

Vacation Pay in New York

Vacation pay is a typical employee benefit throughout the United States. In New York, however, like most states, employers do not have to give their employees paid vacation. Consequently, New York employers have discretion in how they structure their vacation benefits. But once they establish a vacation plan, employers must follow it.

Click here for some other items to review in your Employment Law Check Up.

New York Vacation Pay Law

Again, New York law does not require employers to give their employees vacation time. However, employers who offer paid vacation must notify employees of the applicable policy in writing.

Employers must follow their existing vacation pay policy. If, for example, the policy says that employees will receive unused vacation pay upon separation of employment, then the employer cannot withhold the vacation pay by arguing the employee engaged in misconduct. However, if the policy specifies that unused vacation time is forfeited upon termination, then employees do not have a right to a vacation payout. If the employer’s policy does not address separation of employment, or there is no written policy, then the Department of Labor will take the position that the employee is entitled to a payout of earned vacation time.

Generally, employers may revise their vacation pay policies. In doing so, employers should avoid taking away earned vacation time without adequate compensation.

Employees may also receive contractual rights to vacation pay through individual employment agreements or collective bargaining agreements. Employers may not be able to modify these easily.

Structuring Vacation Benefits

Employers take different approaches to paid vacation.

Some companies allow different numbers of weeks of vacation pay based on length of service. This often ranges from approximately one to four weeks per year. Eligibility may also vary between full- and part-time employees.

Some companies combine vacation and other forms of paid leave into one category—PTO, or paid time off. Employees receive a specified number of PTO days (or hours) to cover absences. This may include or be separate from sick leave.

There are also different accrual methods. Sometimes employees receive all of their annual allotment on the first day of the year. Under other systems, employees accrue vacation pay on a daily, weekly, monthly, or another basis.

Most employers require supervisor approval, ideally with reasonable notice by the employee. This helps avoid too many employees being on vacation at the same time.

Different methods work for different organizations. There is no one-size-fits-all “best” approach. This is one area where employment law, at least in New York, allows employers considerable flexibility to meet business needs.

Check Your Vacation Policy

Take this opportunity to review your organization’s vacation pay policy. Does it still meet your needs? Does it address what happens to vacation time when employment ends?

A well-designed vacation policy can improve employee morale while maintaining productivity. A weak policy can lead to workforce shortages or fatigued employees. Consider many factors, including past experience. If the current vacation pay policy isn’t producing the desired balance, then changes may be appropriate.

Experienced employment attorneys can assist in policy design. They can both offer alternatives that have worked in other organizations and edit policy language to help avoid unintended consequences.