What Is the Independent Contractor ABC Test for Status?

How to Qualify Workers as Independent Contractors

The Independent Contractor ABC Test was a method introduced by the California Supreme Court for determining whether a worker qualified for independent contractor status. You might ask—what does this have to do with New York since it relates to California law?

The answer is: the New York legislature has been discussing regulation of the gig economy. It is interested in developing a law similar to California’s ABC Test and perhaps even introducing collective bargaining law that would allow gig workers to unionize. (Reference: Employment Law Information Network)

Independant Worker

What is the Independent Contractor ABC Test?

When the California Supreme Court ruled in April 2018, it established a precedent now known as the Dynamex ruling. The ruling introduced a three-pronged test (the ABC Test). The test determined whether a worker was an employee or independent contractor. Unless the worker met all of the following three conditions, the worker was determined to be an employee and not an independent contractor:

  1. The worker must be free from the hirer’s control and direction regarding work performed, both under the contract and in fact.
  2. Work must be performed outside the usual course of the hiring company’s business.
  3. Usual work done by the worker must be customarily in an independently established trade, occupation or business of the same nature as the work being performed for the hiring entity.

Misclassified workers made employers liable for minimum wages and overtime along with meal and rest breaks. California has since that time extended the application of the law. It now also applies to workers’ compensation coverage, unemployment insurance, various benefits, paid sick days and family state leave.

(Reference: JD Supra)

When to Seek Legal Guidance

If questions or an employment dispute arise over worker classification, it is wise to seek legal guidance. At Stephen Hans & Associates, our attorneys advise employers regarding classification and other employment issues. You can rely on our skills and decades of experience, acquired from representing employers in employment litigation.

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Employer Guidelines for Paying Employees

Ensuring Your Employees’ Pay Is Fair and Documented

Long Island City, Queens, NY Employment Defense Attorney

Ensuring Your Employees’ Pay Is Fair and DocumentedPaying employees is subject to discrimination laws and regulations that ensure fairness. As an employer, it is important to understand the laws and keep documentation that shows your compliance. Such preventative measures can help you establish good policies and also avoid disputes and lawsuits.

EEOC Guidelines for Paying Employees

The Equal Employment Opportunity Commission (EEOC) recommends you follow certain guidelines when determining what employees should make.

Managers

When training managers, it is vital to make sure they understand their responsibilities when determining pay. Also, they should keep detailed records of any pay decisions they make.

Pay Criteria

Employers should ensure equal pay for men and women who do the same job or work. Avoid discriminatory questions. For example, do not ask for prior salary information. Prior salary is not a valid justification for paying an employee a lesser salary when the employee is doing the same job as another employee. However, a lower salary based on fewer job-related qualifications would be justifiable.

Other pay differences that are justifiable include when pay is based on the following:

  • Seniority system. Employers can justify paying higher wages to employees who have worked longer and therefore contributed more work to the company. Seniority systems may incorporate additional rights and benefits in addition to greater compensation.
  • Merit system. Certain jobs incorporate bonuses or other pay to reward excellent performance.
  • Incentive system. Incentive systems base pay on the quality or quantity of production. The system must be explained to employees, be applied equally for both sexes and have pre-determined factors.

Any of these systems are justifiable as long as there is no intention to discriminate based on race, color, religion, sex (including gender identity, sexual orientation and pregnancy), national origin, disability, age or genetic information.

When to Seek Legal Advice

If an employment dispute arises over pay, it is wise to seek legal counsel. At Stephen Hans & Associates, our attorneys advise employers regarding wages and other employment issues. We have extensive experience representing employers in employment litigation.

Visit our new office location:

Long Island City, Queens, NY Employment Defense Attorney

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Long Island City, Queens,New York Employment Defense Attorney

QUeens Employment Defense Attorney, We Moved, Stephen Hans

New York Employment & Labor Law Attorneys

30-30 Northern Blvd, Suite 401
Long Island City, NY 11101

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The Fair Chance Act in New York

Criminal Background Checks for NY Job Applicants

The Fair Chance Act in New YorkThe Fair Chance Act also carries the nickname “ban the box.” This moniker came from a slogan used by civil rights groups. They campaigned to have the check box for criminal record removed from job applications. The motivation behind the campaign was to provide ex-offenders with greater opportunities to find jobs.

Guidelines Employers Must Follow

Under the Fair Chance Act, most employers in New York cannot ask a job applicant whether they have a criminal record when conducting a job interview. Job applications also must not ask whether the applicant has a criminal record.

This prohibition allows applicants to go through job interviews and be evaluated on their own merit. In addition, ads for jobs cannot state that applicants must pass a background  check or include phrases such as “no criminal record” or “no felonies.”

At What Point Can an Employer Inquire About Criminal Records?

After an employer extends a conditional job offer to the applicant, the employer can do or have a background check done. The check includes finding out about any criminal record the applicant has.

What Are Employers’ Guidelines If a Criminal Background Exists?

The employer has the right to ask about:

  • The arrest that occurred
  • What the original charges were
  • What circumstances led to conviction

Questions that an employer may not ask include questions about arrests that did not lead to convictions. They also may not ask about convictions that were:

  • Sealed or expunged
  • Reversed on appeal
  • For violations, infractions or petty offenses
  • For a youthful offender or juvenile delinquency finding
  • Withdrawn upon completing a court program

What an Employer Must Do When Revoking a Job Offer

Employers must explain why the job offer was revoked. The NYC Commission on Human Rights provides a Fair Chance Act Notice that provides guidelines for employers.

Employers must also give a copy of the criminal record information they obtained, whether the record was from an agency or from an Internet search.

Our attorneys at Stephen Hans & Associates have decades of experience representing employers in work-related issues. We can assist you with questions about employment laws.

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Social Media Used in Job Screening

What Employers Should Know About Using Social Media to Research Job Candidates

Can You Use Social Media in Job ScreeningAccording to a 2018 CareerBuilder survey, 70 percent of employers are using social media to screen job candidates.

The Fair Consumer Credit Reporting Act (FCRA), Job Screening and Social Media

Screening results that are done by a third party, such as staffing agency or company that does background reports, constitute a consumer report. Social media information that is gathered by the agency and incorporated into the report is also subject to FCRA compliance.

Under the FCRA, consumers have the following rights (and this also applies to job applicants):

  • To consent in writing to the background check or information being gathered
  • To receive a description of the nature and scope of the background investigation that will be contained in the investigative report
  • To dispute the information obtained

According to the Equal Employment Opportunity Commission (EEOC), when employers use a third party to screen job applicants or employees (a company that compiles background information), they must comply with the FCRA.

New York State and federal laws prohibit employers from basing hiring decisions on race, sex, religion, age, national origin, pregnancy and other legally protected classes.

Some EEOC Guidelines

You cannot use any of the information gathered to discriminate against an employer or job applicant. For this reason you should be particularly careful if basing your decision on problems that are more common to a particular protected class. For example, if you decided that a person with a disability would not be able to do a particular job, you should first give the applicant the opportunity to demonstrate whether they could perform the job or not.

If you decide to not hire based on the background information, you must provide the applicant with the following:

  • A notice that includes a copy of the consumer report that you used to make the decision
  • A copy of “A Summary of Your Rights Under the Fair Credit Reporting Act” (the company selling the report should have provided this to you)

At Stephen Hans & Associates, we can answer your questions and limit your liability by helping you ensure that your hiring process complies with standard practices.

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Customer-Based Sexual Harassment of Employees

How You Can Protect Employees from Customer-Based Sexual Harassment?

sexual Harassment in the workplaceCustomer-based sexual harassment of employees can be a problem, and employers may not know what to do about it. It is vital to protect their employees’ rights. Also, employers could be at risk for liability, and they should consider taking responsible actions to protect their own rights.

The National Law Review featured an article that discussed what employers could do to protect against liability in situations where customers harass their employees. The same standards apply for sexual harassment of employees by customers as for sexual harassment by other employees.

What Actions Should Employers Take to Deal with Customer-Based Sexual Harassment of Employees?

The first step, and you must do this immediately, is to conduct an investigation of the alleged customer-based sexual harassment. According to Lapka v. Chertoff (7th Circuit, 2008),”Employers are liable for third-party harassment if they ‘unreasonably fail to take appropriate corrective action reasonably likely to prevent the misconduct from recurring.’ ”  In the Lapka case, the court stated, “The hallmark of [appropriate] corrective action is a prompt investigation.”

Steps to Take After Investigation

Based on the findings of their investigation, employers should take corrective action to prevent future harassment. They should also follow up to see whether their corrective actions have been effective.

Some corrective actions you can take may include:

  • Issuing policies that cover and prohibit customer-based harassment
  • Advise the customer of the complaint and tell them the behavior must cease immediately
  • Prevent the customer from entering the company’s property
  • Consider contacting the customer’s employer if a work relationship also exists between employers
  • If it is to no disadvantage to the employee, change their work location so they are no longer exposed to the customer
  • If necessary or appropriate, contact law enforcement for a protective order

Seek Legal Advice

If you believe you are legally at risk, it is wise to seek legal counsel for guidance. At Stephen Hans & Associates, our attorneys advise employers regarding work related issues. We also represent employers in employment litigation.

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What Potential Penalties Do Employers Face in NY Discrimination Cases?

More Potential Penalties for Employers

Potential penalties for employers are likely to result from the amendments to the New York State Anti-Harassment Law. As the repercussions of the amendments become clearer to employers, more businesses will establish anti-discrimination work policies. Revised anti-harassment policies and stricter enforcement of them may help prevent lawsuits.

What Potential Penalties Do Employers Face in NY Discrimination Cases?

Potential Penalties that Employers Face Financially

The recent amendments enable an employee, who wins an employment discrimination case against an employer, to receive punitive damages.

What are punitive damages? A court can award punitive damages in a civil lawsuit to punish the defendant or deter the defendant’s future engagement in the same type of conduct. These are monetary amounts that the defendant must pay to the plaintiff and are also called exemplary damages. Courts award such damages in addition to other damages awarded in a case. In most cases, courts award punitive damages when the conduct is willful and intentional. (Cornell Law)

Recovery of Attorney’s Fees

Another potential monetary penalty that employers face if the plaintiff wins the case is a penalty of having to pay the plaintiff’s attorney’s fees. However, the same is not true if the employer (as the defendant) wins the case. The court will only have the employee pay the employer attorney’s fees if it can be proven that the action or proceeding filed by the employee was a frivolous lawsuit.

Typically, a frivolous lawsuit is one that the plaintiff files based on an intention to harass, disturb or annoy the other party. Lawsuits are also frivolous when the plaintiff knows that the likelihood of succeeding in court is very slight or non-existent.

(Reference: JD Supra)

Seek Legal Advice and Representation

Employers can often avoid disputes and lawsuits. At Stephen Hans & Associates, our attorneys advise employers about making changes in employment agreements and other employment related policies. We also represent employers in employment litigation.

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