Posted on September 13, 2024
MICHAEL KOBLENZ JOINS WESTERMAN BALL - A PREMIER BUSINESS FIRM
Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, a leading business law firm located in Uniondale, New York, is pleased to announce that Michael R. Koblenz, Esq., the current Mayor of East Hills, has joined as Counsel to the Firm in July 2024.
Michael spent 43 years as a Senior Partner at a preeminent Wall Street law firm. A seasoned business lawyer, he
Posted on April 25, 2024
FTC - Ban Non-Compete Agreement. Listen to the latest podcast of The Employment Huddle to learn more:
Spotify link: https://podcasters.spotify.com/pod/show/employment-huddle/episodes/Episode-12---Ban-on-Noncompete-Agreements-e2isi8h.
Amazon Music: https://music.amazon.com/podcasts/b5423b95-9029-4e96-8b2c-1be18088c9df/employment-huddle
Posted on April 21, 2021
On March 31, 2021, Governor Andrew Cuomo signed the Marihuana[1] Regulation and Taxation Act (the “Act”) into law. This bill has both immediate and long-term impacts on various aspects of life in New York State, including the workplace. This article focuses on the immediate workplace implications of the Act. Under the law, adults aged 21 or older may lawfully possess, use, and transfer without compensation, up to three ounces of cannabis and up to 24 grams of concentrated cannabis.
The Act prohibits, with limited exceptions, disciplinary action and discrimination against employees for their lawful use of marijuana. The law creates a private right of action for employees who believe they were discriminated against. Specifically, employers may not take adverse action against an employee because of their:
The Act is not intended to limit the authority of employers “to enact and enforce policies pertaining to cannabis in the workplace.” Employers do not violate the law when taking disciplinary action against an employee for their use of marijuana based on the following:
Workplace Use/Possession Can Be Prohibited. Employers may still prohibit marijuana use or possession during work hours, on employer premises and while using an employer’s equipment or other property.
Limited Federal Exceptions. Employers may continue to take adverse action against employees who engage in off-duty marijuana use if: i) so required by state/federal law, regulation, ordinance or other state/federal governmental mandate; or ii) complying with the Act would require an employer to violate federal law or would result in the loss of a federal contract or federal funding. This safe harbor is limited and does not allow employers to discriminate against marijuana users simply because cannabis is illegal under federal law. Rather, specific obligations, if any, such as those under federal government contracts or grants must be considered.
Workplace Impairment Can Be Prohibited. An employer may take adverse action against marijuana users under the Act based on an employee’s workplace “impairment.” However, the employee must manifest specific articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position, or such specific articulable symptoms interfere with an employer's obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law. If an employee tests positive in the workplace, but does not exhibit specific articulable symptoms, the employer may be barred from taking an adverse action against the employee.
Impaired Driving Not Protected. The Act does not excuse an individual from driving while impaired by marijuana under New York marijuana DUI/impairment laws.
Employers may still continue drug testing of prospective and current employees. However, pre-employment testing cannot be used to refuse to hire, discharge, or otherwise discriminate against an individual because they test positive for marijuana. Since May 2020, New York City employers have been prohibited from requiring prospective employees to submit to drug testing for the presence of tetrahydrocannabinols or marijuana, except for certain situations. Employers who intend to continue drug testing current employees should review their procedures to make sure they do not take disciplinary action against an employee, except for the limited circumstances outlined above.
Employers should review their drug testing policies, pre-employment screening procedures (including background checks for certain drug-related offenses) and make sure they compliant with the new law. The Labor and Employment Group at Westerman Ball Ederer Miller Zucker & Sharfstein is here to answer any questions and help develop or review policies to ensure compliance with the new law.
[1] The statute uses a less common spelling, “marihuana,” but we will use the term “marijuana” throughout this article.
[2] “Work hours” means all time, including paid and unpaid breaks and meal periods an employee is suffered or permitted or expected to be engaged in work, and all time an employee is actually engaged in work.
Posted on March 23, 2020
FEDERAL COVID-19 EMERGENCY LEGISLATION
EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT (FMLA)
SHORT SUMMARY
Requires employers to provide ten (10) days of unpaid leave then up to ten weeks of paid leave for employees unable to work (or telework) due to their minor child’s school or place of care being closed due to COVID-19.
ELIGIBLE EMPLOYEES
All employees who have been employed for at least 30 calendar days by the employer as of April 2, 2020 and have a qualifying need to take leave related to a public health emergency.
EMPLOYERS REQUIRED TO COMPLY
Employers with less than 500 employees. Sec. of Labor may exempt small businesses with fewer than 50 employees when imposition of such requirements would jeopardize the viability of the business as a going concern.
FIRST TEN DAYS- unpaid leave or employee may elect to use accrued leave (see the Emergency Paid Leave Act, which provides for up to 10 days of paid leave)
PAID LEAVE REQUIREMENT
An employer must provide paid leave for each day of leave that an employee takes after taking leave under this section for 10 days.
CALCULATION OF PAY
FEDERAL EMERGENCY PAID SICK LEAVE ACT
SHORT SUMMARY
Requires employers to provide up to ten (10) days of paid leave for employees under a government quarantine or isolation or to care for a family member that is under government quarantine or isolation.
EFFECTIVE DATE
An individual employed as of April 2, 2020. Employees are eligible for this leave immediately, there is no waiting period unlike emergency FMLA. This act sunsets on December 31, 2020.
SIZE OF EMPLOYERS SUBJECT TO ACT
Applies to employers with less than 500 employees. Sec. of Labor may exempt small businesses defined as those with fewer than 50 employees if the required leave would jeopardize the viability of their business.
HOURS EMPLOYERS MUST PAY
Full-time employees are entitled to 80 hours of paid sick time.
Part-time employees are entitled to a number of hours equal to the number of hours that such employee works, on average, over a 2 week period.
NOTICE REQUIREMENT
Employers must post and keep posted the requirements of this act. Sec. of Labor will provide a model notice by April 9, 2020.
PENALTIES FOR FAILURE TO COMPLY
Violations for unpaid sick leave or unlawful termination will be considered failure to pay minimum wage in violation of Fair Labor Standards Act.
|
Reason for Leave |
Rate of Pay |
Daily/Aggregate Maximum |
|
(1)-The employee is subject to a Federal, State, or local quarantine or isolation order related to CVOID-19. |
Employee’s regular rate of pay |
Up to $511 per day and $5,110 in the aggregate |
|
(2)-The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. |
Employee’s regular rate of pay |
Up to $511 per day and $5,110 in the aggregate |
|
(3)-The employee is experiencing symptoms of COIVD-19 and seeking a medical diagnosis. |
Employee’s regular rate of pay |
Up to $511 per day and $5,110 in the aggregate |
|
Reason for Leave |
Rate of Pay |
Daily/Weekly Maximum Allowed |
|
(4)-The employee is caring for an individual who is subject to an order as described in paragraph (1) or has been advised as described in paragraph (2) |
Two-thirds (2/3) of employee’s regular rate of pay |
Up to $200 per day and $2,000 in the aggregate
|
|
(5)-The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions. |
Two-thirds (2/3) of employee’s regular rate of pay |
Up to $200 per day and $2,000 in the aggregate
|
|
(6)-The employee is experiencing any other substantially similar condition specified by the Secretary of health and Human Services in consultation with the Secretary of the Treasury and Secretary of Labor. |
Two-thirds (2/3) of employee’s regular rate of pay
|
Up to $200 per day and $2,000 in the aggregate
|
Posted on September 6, 2019
Westerman Ball Ederer Miller Zucker & Sharfstein, LLP is pleased to announce that Guy M. Allen has joined our firm as a partner and co-chair of the firm’s labor and employment practice group. Guy comes to Westerman Ball from one of the world’s premiere and largest labor and employment law firms. He represents national and international companies in both the private and public sector. Guy has over 25 years’ experience in representing employers in all types of employment matters.
Guy will continue to represent his clients in the manner they have been accustomed to over the years and will also bring his labor and employment expertise to Westerman Ball’s clients so that the firm can further its goal of servicing all of the legal needs of its business clients with the most personalized, professional and high level practice of law for which Westerman Ball has become known.
