Even Unpaid Interns May Be Your Employees


This article was originally published in The Daily Record June 2, 2015.  

“Back in the day” – this phrase causes my 17-year-old daughter to roll her eyes, assume the “I don’t want to hear this” pose, and begin scrolling through the songs on her iPhone. Anyway, back in the day when I was in college, unpaid internships were plentiful and filled with hours of filing, running to the bank and post office, and other mundane tasks. As an immediate reward, I received a glowing reference letter, which I proudly included with countless job applications. Looking back, I realize there were a number of rewards: valuable life lessons like the importance of personal and professional responsibility, Continue reading

Are You A Little Fuzzy On NY Medical Marijuana Law? You’re Not Alone


This article was originally published in The Daily Record July 7, 2015.  

Governor Cuomo signed the Compassionate Care Act into law on July 5, 2014, following weeks of closed-door negotiations between the Governor and a number of legislators. With the signing of the Act, New York became the 23rd state to enact a medical marijuana law. However, this is not your typical, “Dr. Dude…give me a prescription so I can light up” law. In fact, many are calling it one of the most complex and restrictive medical marijuana laws in the nation. From the beginning, it’s clear this law will have much broader implications for employers, and their covered employees, than merely legalizing a Continue reading

Workplace Investigations: Answering the Multimillion-Dollar Question


This article was originally published in The Daily Record February 8, 2016. 

The concept of workplace investigations is nothing new to most employers. However, like so many other employer responsibilities, these investigations have become more complex and, if not handled correctly, filled with potential sources of significant liability.

Before we go too deeply into the investigations, let’s take a look at why they are more necessary than ever. According to the U.S. Equal Employment Opportunity Commission (“EEOC”), in fiscal year 2014 (the most recent statistics available), the Agency received 88,778 complaints of workplace discrimination. However, because individual complaints often charge multiple types of discrimination (for example sexual harassment and retaliation), this number is less than the total number of individual charges. Of the 88,778 complaints received by the EEOC, 42.8 percent included allegations of retaliation, 35 percent included allegations of race discrimination, and 29.3 percent included allegations Continue reading

Wait Until You Read the Chapter on I-9 Forms!


This article was originally published in The Daily Record January 8, 2016

Someday I’m going to write a book about my experiences as an HR consultant. In fact, a quick glance at my ever-expanding notes would lead one to believe it’s more likely to be a novel. I’ve had several of those “I’m going to write a book” moments lately, predominantly because of a question I’ve been asked repeatedly: “What’s an I-9?”

Yes, I know that management at every level is barraged with legal and regulatory jargon, forms, and requirements on a daily basis. However, the I-9 form has been a federal regulatory requirement for every employee hired since November 6, 1986. That fact alone puts the I-9 form in the same category of recognition as the W-4, W-2, and the ever- Continue reading

FLSA vs. The Gig Economy: Is A Showdown Looming?


This article was originally published in The Daily Record December 8, 2015

I heard a great line on TV the other night that really hit home. Referring to an older physician, a twenty-something intern said, “He’s been here since dial-up!” Hey, wait a minute! I remember connecting to dial-up Internet service, listening for the unmistakable sounds that were the only indication that it was working. Back then, I was using a cutting-edge “portable” computer (the size of a large toolbox) with its small green screen, dual floppy disk drives, and 40 megabyte hard drive. According to the salesperson, “you’ll never fill that up!” I think it’s safe to say that neither he nor I imagined a world in which I’d be pushing the limits of the 64 gigabytes on my iPhone.

In the dial-up days, you only had a couple of ways to get a ride from point A to point B, hire someone to fix your gutters, or get your house cleaned. Either you knew someone to call, or you took the big floppy phone book out of the closet and looked in the Yellow Pages. I think it’s also safe to say that in the late 1980s and early 1990s, few people imagined a Continue reading

“Like” It or Not,Employees Are Protected


This article was originally published in The Daily Record November 6, 2015

One thing’s for sure, the National Labor Relations Board isn’t the most exciting topic, even for me. However, the Second Circuit Court of Appeals recently made it a little more exciting. But, I’m getting ahead of myself.

The question of what, if any of an employee’s online activity can be protected speech has been with us for a few years. The case that first caught my attention in 2012 was NLRB v. Hispanics United of Buffalo, Inc. Here, a group of employees complained on Facebook about a co-worker who had a habit of harshly criticizing their work performance. The original post went like this: Continue reading

FLSA’s “Suffer or Permit to Work” Standard Alive and Well


This article was originally published in The Daily Record on October 6, 2015

The Federal Department of Labor’s Wage-and-Hour Division has been very busy over the past several months, and there are no signs of it slowing down. Days after issuing its Notice of Proposed Rulemaking regarding changes to the “White-collar” exemptions, an Administrator’s Interpretation was released which provides guidance on whether a worker is an independent contractor or an employee.

In the 15-page guidance document, WHD administrator Dr. David Weil begins by expressing a belief that a growing number of employers are intentionally misclassifying workers as independent contractors “as a means to cut costs and avoid compliance with labor laws.” To counter this trend, the WHD has adopted the most expansive definition of “employee” possible, and affirmed that the economic realities govern the determination of independent contractor status. None of this should come as a surprise, given Dr. Weil’s Continue reading