EMPLOYMENT LAW HANDBOOK FOR NON-LAWYERS - New …
EMPLOYMENT LAW HANDBOOK FOR NON-LAWYERS
COMMITTEE ON LABOR AND EMPLOYMENT LAW
MARCH 2016
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
42 WEST 44TH STREET, NEW YORK, NY 10036
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This handbook is designed to assist employees who have legal questions about their rights in the workplace.
Oftentimes, employees are able to resolve work problems at work and have no need for the intervention of the courts or an administrative agency. However, sometimes employees are simply unable to resolve their work place problems at work and require some sort of intervention. This pamphlet is designed for those employees who feel they have a workplace problem and believe they require outside assistance.
Unfortunately for non-lawyers ? and occasionally for lawyers as well ? the field of labor and employment law can be extremely complex. The law of the workplace is governed by a mixture of Federal, State, and City statutes, some of which overlap and some of which are mutually exclusive. This pamphlet will provide an overview of the laws that govern the workplace. It is divided into eight sections:
1) The legal relationship between employer and employee 2) Wages and pay 3) Discrimination 4) Whistleblowing 5) Unions and collective action 6) Heath and safety 7) Employment benefits 8) Unemployment benefits
If after reading this pamphlet, you have questions about how these laws apply to you or about your rights at work, contact the New York City Bar Association's Legal Referral Service at (212) 626-7373 or to speak with an attorney.
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SECTION 1: THE LEGAL RELATIONSHIP BETWEEN EMPLOYER AND EMPLOYEE Employment at Will
Approximately three quarters of New York City's workers are "at will" employees,1 which means their employers can fire them at any time without warning or justification. "At will" employment is based on the notion that individuals should have the right to contract freely with one another, so an employee can quit at any time without giving notice, and, in turn, their employer can fire them at any time without notice.
As a result of "at will" employment, most New York City employers can legally demote or fire employees, or cut employees' pay or benefits, at any time without giving any notice, reason, or justification. Employers are not required to consider the seniority or work performance of "at will" employees when making decisions about employment. Employers are also not required to issue verbal or written warnings to employees before firing them, even if they have done so for other workers and even if their employment handbook says they will do so.
The only New York City employees who are not employees "at will" are employees who are union members and those who have individual employment contracts. For workers with union contracts or individual contracts, the terms of their contracts govern when and how their employers can fire them or change the terms of their employment.
Even "at will" employees have some legal protections, however. The following sections of this handbook will outline the legal rights that all employees, including "at will" employees, have in the workplace.
1 RUTH MILKMAN AND STEPHANIE LUCE, JOSEPH S. MURPHY INSTITUTE FOR WORKER EDUCATION AND LABOR STUDIES, THE STATE OF THE UNIONS 2015 6 (Sept. 2015), available at .
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SECTION 2: WAGE AND PAY
Employee wages and other pay-related regulations are primarily governed by two laws: the Federal Fair Labor Standards Act (FLSA), which sets certain minimum national standards, and the New York Labor Law (NYLL), which applies to all employees working in the State of New York.
Fair Labor Standards Act
The FLSA provides that most employees must be paid at least the Federal minimum wage2 for all hours actually worked up to 40 in any given week, and one and one-half their regular rate of pay for each hour actually worked above 40 hours in any given week.
Certain types of workers are not included in the FLSA's definition of "employee" and, therefore, are not covered by the minimum wage and overtime rules described above. For example, student interns who are engaged in a legitimate internship program related to a course of study and in which the intern is the primary beneficiary of the internship are not required to be paid minimum wage or overtime wages. Likewise, non-profit and governmental organizations may employ unpaid volunteers, whereas forprofit entities are generally prohibited from employing unpaid volunteers if their work would replace work normally done by employees. Independent contractors are another category of workers who, if properly classified, are not subject to the rules of the FLSA. Independent contractors are discussed further, below.
Certain types of workers, while considered "employees," are nonetheless not covered by the FLSA minimum wage and overtime provisions. These employees are referred to as "exempt":
? Executive Employees: workers who are paid on a salary basis (paid a predetermined amount each pay period regardless of days or hours worked) at least $455 per week and have, as their primary duty, management duties including directing two or more full-time employees, are generally exempt.
? Administrative Employees: workers who are paid on a salary or fee basis at least $455 per week and have, as their primary duty, office or nonmanual work directly related to the management or general business operations of the employer, and who exercise discretion and independent judgment regarding significant management matters, are generally exempt.
2 The Federal minimum wage changes frequently; check here for the current rate: general/topic/wages/minimumwage.
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