Employment Law

Employment Discrimination

• Litigation – Prevention, Management and Defense
• Charges and Claims – Federal, State and City Agencies
• Workplace Harassment – All Forms, Including Sexual Harassment
• Preventive Counseling
• OFCCP – Affirmative Action Plan Design, Audit Defense, Conciliation Agreements

Human Resources

• Consumer and Investigative Reports – Hiring, References, Promotion
• Testing – Selection, Promotion, Substance Abuse
• Compensation – Leaves, Benefits, Pay
• Employee Privacy – Internet/E-Commerce/Social Media
• Agreements – Employment, Management, Severance, Release, Independent Contractor, Dispute Resolution
• Restrictive Covenants – Non-Solicitation, Non-Compete, Non-Disclosure, Confidentiality, Trade Secret
• Documents – Forms, Handbooks, Policies, Processes, Procedures
• Transactions – Acquisitions, Mergers, Sales, Closures
• Workers’ Compensation – Audits, Penalty Disputes, Judgments
• Unemployment Insurance – Hearings and Appeals
• Compliance – Selection, Termination, Best Practices

Wage and Hour

• Minimum Wage and Overtime Requirements – State, Federal
• Classification – Employee or Independent Contractor, Exempt or Non-Exempt
• New York State Department of Labor Audits – Preparation, Defense
• Hearings – New York State Industrial Board of Appeals
• Litigation, including class action, defense in state and/or federal court
• Prevention – In All Areas

Employment Discrimination

Litigation, Charges and Claims

Employment law and litigation present some of the most unique challenges faced by business clients today. In addition to prevention, litigation management and defense, TREMITI LLC assists its clients by educating them about the concepts of burden shifting, pretext and legitimate, non-discriminatory business reasons for making an appropriate – and defensible – personnel decision.

Workplace Harassment

As part of its employment law practice, TREMITI LLC represents employers, managers and supervisors charged with any form of workplace discrimination and harassment before federal state and local agencies and before state and federal court.

Preventive Counseling

TREMITI LLC engages in preventive counseling on behalf of its business clients regarding all forms of workplace harassment, including workplace harassment by a supervisor, manager or other third party, and provides related training and education services.

Affirmative Action

TREMITI LLC also has experience counseling businesses with government contracts regarding their affirmative action obligations, including affirmative action plan design. TREMITI LLC is equipped to represent its clients in compliance reviews and audits conducted by the Office of Federal Contract Compliance (OFCCP), and to negotiate satisfactory conciliation agreements on their behalf.

Human Resources

Consumer and Investigative Reports

TREMITI LLC counsels employers about a broad spectrum of human resources related legal issues. For example, TREMITI LLC counsels clients about the legal requirements governing the use of consumer and investigative reports. The ability of employers to conduct background investigations and reference checks is governed by federal, STATE AND LOCAL law. Some employers may conduct such investigations on their own, while others may engage a third party security or investigation organization. TREMITI LLC advises and counsels employers and third party organizations about the requirements of such investigations, the use of the data collected and for how long the data collected may be used and for what purpose. Any questions that concerned employers and organizations may have about this issue should be directed to TREMITI LLC and/or their legal counsel.

Testing

TREMITI LLC assists clients who wish to develop employee testing procedures. Employers often raise issues of testing their employees in a variety of contexts. Some employers are interested in testing for the purposes of hiring and/or promotion, while others are concerned with substance abuse testing.

Regardless of the context, there are a number of legal issues that must be considered if testing in these contexts is to be considered valid.

For those employers who wish to test as a selection tool, there are federal guidelines that must be followed. The test must be valid and carefully drawn. The use of a testing expert is not uncommon in this scenario. TREMITI LLC assists employers considering this option.

The issue of substance abuse testing is often raised by employers after the fact. In such cases, an appropriate plan has yet to be designed and employee privacy is not safeguarded. Therefore, issues such as the method of testing, where the testing will take place, by whom and the appropriate review mechanism are left unanswered. TREMITI LLC assists its clients with plan design before the fact, to ensure that proper procedures are followed should future employment decisions warrant the use of a substance abuse program.

Compensation

TREMITI LLC advises clients regarding compensation, payroll, time and leave and employee benefits issues. Whether the questions have to do with the information that must be contained in a payroll statement, whether certain leaves must be paid or unpaid,or whether and under what circumstances employers must pay for accrued but unused leave upon employee separation, TREMITI LLC is prepared to assist employers with these and related legal issues.

Employee Privacy

The growth of social media presents employers with challenges that must be addressed. Employers have long had policies and procedures governing the use of the internet and email at work, the use of cell telephones while at work and the use of work telephones for personal use. Employers now clamor for social media policies that, when intertwined with other existing media policies, combine to provide the contemporary employer with a sensible and comprehensive media policy and, most especially, a policy that does not trammel on the rights of employees to engage in any activity that even remotely approaches concerted activity. TREMITI LLC has designed such policies and can assist employers who contemplate designing one of their own.

Agreements, Restrictive Covenants

Employers are often concerned about the drafting of employment and/or management agreements and whether such agreements are enforceable. Moreover, employers raise questions about certain provisions in those agreements, particularly the enforceability of confidentiality, non-disclosure, trade secret and restrictive covenant provisions.

Restrictive covenants may include non-solicitation of employees as well as covenants not to compete in a certain geographic area for a specific period of time. TREMITI LLC has drafted such provisions for employer clients in the past and remains ready to advice and counsel employers who need these provisions in their agreements, or who wish to have these provisions updated, amended or reviewed.

In addition, TREMITI LLC has prepared severance and release agreements in conformity with federal law and can assist employers who need to do so in a particular employment situation.

TREMITI LLC can also assist employers with preparation of independent contractor and employment agreements.

Documents

Employers are wise to establish guidelines for their employees in the form of employee handbooks, policies and procedures.

TREMITI LLC prepares employee handbooks, interview questions, application and performance evaluation forms, dispute resolution procedures, telecommuting and temporary worker agreements and can craft agreements and documents to address the unique situation.

On behalf of one of its long standing clients, TREMITI LLC regularly engages in an annual review of its employee handbook, ensuring that the provisions of the handbook are current with not only federal and New York State law, but with New York City law as well.

Transactions

The firm counsels clients about employment issues that arise with as a result of a business merger, acquisition or sale. In addition, TREMITI LLC is in a position to advise employers about layoffs, reductions-in-force and site closures, including any applicable Worker Adjustment and Retraining Notification Act (WARNA) notice obligations.

As with any significant employment decision, appropriate counseling before the decision is effectuated places the employer in the most advantageous – and defensible – position.

Worker’s Compensation, Unemployment Insurance

TREMITI LLC counsels employers faced with the prospect of an audit by the New York State Workers’ Compensation Board. TREMITI LLC works seamlessly with the employer’s insurance carrier and accountants on issues related to coverage, including disability coverage, employee classification, independent contractor status, penalties and with negotiations once judgment is entered.

Several of the firm’s contractor clients have experienced issues with insurance carriers. Those issues include whether the insurance policy excluded coverage under the law, whether those engaged by the clients were employees or independent contractors and whether alleged injuries were work-related in the first instance.

Similarly, TREMITI LLC assists employers who are subject to an audit by the New York State Department of Labor’s Unemployment Insurance Division. TREMITI LLC advises employers whether to contest administrative findings, request a hearing before an Administrative Law Judge and whether to appeal a Judge’s findings to the New York State Unemployment Insurance Appeal Board once a decision is rendered.

Compliance

Larger organizations often have a compliance officer conduct compliance audits of their employment and other business practices. Smaller and mid-size employers might rely instead on other measures, such as relying on an outside organizations/law firms to advise them on what should be contained in an employment audit, who should conduct the audit and whether such audit should be designed to fall within the attorney-client privilege, among other related issues. TREMITI LLC would be pleased to assist its clients in these endeavors.

Wage-Hour

Minimum Wage and Overtime

Litigation avoidance and management compliance are critical in the area of employment law. Central to these elements is an active and strategic program of preventive counselling. The application of these principles has been most important in recent years to the area of wage and hour law.

The growth in wage-hour litigation, including class action litigation, is of concern to employers for several reasons. The state and federal laws are complex, the employer is held responsible for plaintiff’s attorney’s fees, in addition to its own costs of defense, and a relatively modest amount owed in restitution can significantly increase once interest and penalties are taken into account.

Unlike some other areas of the law, the factual nuances of each particular situation, as well as the costs associated with defending such claims, lead employers to resolve cases early in the litigation process, to avoid the ever increasing costs of moving forward, even if there is some likelihood of success on the merits.

TREMITI LLC encourages employers to be especially proactive in this area, in terms of preventive efforts that may stave off the possibility of litigation. TREMITI LLC advises and counsels employers with respect to their obligations under federal and state wage-hour laws.

As part of any wage-hour compliance effort, employers must be familiar with the requirements of the federal Fair Labor Standards Act (FLSA) and applicable New York State law. In New York, one and one-half times the regular hourly rate is owed for overtime after 40 hours are worked by a non-exempt employee in a workweek. Unlike some other states, there is no daily overtime requirement in New York.

However, many employers fail to properly define their workweek, let alone keep accurate payroll records, all of which can be problematic.

Classification

Our state and federal wage-hour laws are also concerned with employee classification and/or misclassification. Misclassification occurs if employees are classified as independent contractors. Misclassification also occurs if hourly, non-exempt employees ordinarily entitled to overtime are classified as salaried employees exempt from overtime. TREMITI LLC counsels employers regarding employee classification, minimum wage, overtime, defining a workweek and the importance of keeping accurate payroll records.

As an example, TREMITI LLC is counselling a client about proper classification of its employees as exempt or non-exempt. Central to this inquiry are the duties of the employees, their current levels of compensation and the hours worked by the employees over the prior six (6) year period.

Audits

Employers may be subjected to a wage-hour audit at any time. An audit could, for example, be triggered by an employee who failed to receive their last paycheck or who may have had improper deductions withdrawn from their pay. The employer will be expected to produce accurate payroll records for the time period audited which, in New York, can be for up to six (6) years. The employer will also be expected to justify employees classified as exempt from overtime and/or as independent contractors. TREMITI LLC counsels employers to successfully defend a wage-hour audit.

Most recently, TREMITI LLC concluded the successful defense of a restaurant in an audit initiated by the NYS DOL WH in which an employee was alleging unpaid overtime. The firm was able to significantly reduce the amount demanded by the DOL without the need for a hearing before the NYS Industrial Board of Appeals. Accordingly, a satisfactory settlement agreement was reached between the parties.

Hearings

If a wage-hour audit is conducted by the New York State Department of Labor’s Wage-Hour Division and the employer is not able to resolve a dispute arising from the results of an audit, the matter will be set for hearing before an Administrative Law Judge of the New York State Industrial Board of Appeals. TREMITI LLC represents employers before the Board of Appeals and is familiar with the process and procedure.

TREMITI LLC successfully defended a client who held a power of attorney in regard to an elderly relative and, through the power of attorney, obtained an assistant to perform simple tasks at the relative’s premises. The assistant alleged that she was entitled to unpaid overtime. The Administrative Law Judge held that the assistant did not qualify for unpaid overtime under the law given her basic job duties.

LITIGATION

TREMITI LLC represents employers in single plaintiff and in collective and/or class actions in federal and state court.  Accurate payroll record-keeping is essential to a successful defense, as is proper classification of employees.  Meaningful preventive and compliance efforts are critical to minimizing the threat of litigation in this area.

However, when litigation cannot be avoided, effective defense is paramount.

The firm successfully obtained summary judgment in federal court dismissing the matter when it represented a sub-contractor with co-counsel in a multi-state class action in which plaintiffs alleged that the outside sales exemption under the FLSA did not apply to them.

The firm along with co-counsel successfully negotiated a resolution to a class action filed in state supreme court in which plaintiffs alleged unpaid overtime. The use of a forensic accountant was vital to ascertaining a reasonable amount of damages and inducing resolution.

Similarly, with co-counsel, the firm successfully mediated a resolution to a single plaintiff unpaid overtime case filed in federal court. The settlement agreement in principle was reached before significant expense was incurred by the parties in the discovery phase of the litigation.

Prevention

The most effective defense to a wage-hour audit is a proactive program of prevention. Such an effort includes classifying employees appropriately, maintaining accurate payroll records and ensuring payment of minimum wage and overtime as required. Most questions that employers may have can be answered by consulting the web sites of the United States and New York State Departments of Labor. Of course, always feel free to contact TREMITI LLC with any questions that you may have.