Employees who have received an Employment Contract or an Offer Letter should have it reviewed by an attorney before signing it and accepting the terms within. While most people are concerned that any delay in signing and returning an Offer Letter and/or Employment Contract can result in the loss of the job, it may be detrimental to you quickly sign the document and not to fully understand the relation that you are entering into, more specifically – the obligations you may be agreeing to and the rewards that may or may not be within the document you are signing. It is also important to remember that you are considered valuable at the time an offer is being extended to you and this is the best time to maximize on your value.

Before signing an Offer Letter and/or an Employment Contract, these are some points to think about:

·     Will you be an “at will” employee (meaning that you can be terminated for any reason or no reason at all, so long as the reason does not violate the law) or are you being hired for a set period of time (i.e. 1 year);

·     Does the document include your title, work location, or who you will report to?

·     Are you being offered a “guaranteed” or “discretionary” bonus and if a “guaranteed” bonus is it truly guaranteed?

·     What benefits/ perks will you be receiving? Are these the same as other employees in similar positions?

·     Are there any other documents and/or policies and/or handbooks that are incorporated by reference into this document and if so, have you received copies of these items for your review.

·     Will you have to sign a non-compete agreement, confidentiality agreement, workplace invention agreement, etc.

·     Are you to receive equity or stock and if so when, do they need to be approved by the Board or others, and did you receive a copy of the plan documents?

·     Are you relocating for the position and if so, are the terms of the relocation set forth in the document or will you be receiving another agreement detailing the specific understandings you have reached; and, 

·     Does the document say what happens if you are terminated with or without cause? Can you resign for “Good Reason”? Will you receive any severance?

Aside from the above items, there are other factors to be contemplated. For example, if you are presently employed, when is the proper time to give notice of your resignation to your current employer? Also, are there any restrictions on your future employment that would prevent you from taking this new position? And if you have restrictions, have these been disclosed to the prospective employer?

Donath Law, LLC can assist you in reviewing the necessary documents to protect you on the way into your new employment and at the same time review any documents that you may have signed at your current or former employer to make sure you understand your rights and obligations on the way out. Donath Law, LLC also understands that this process is timely and any Offer Letter and/or Employment Contract must be reviewed and responded to promptly. As such, Donath Law, LLC is available in the evenings and weekends to make sure that you can promptly respond to the prospective employer.

Additionally, Donath Law, LLC is available to assist you during the negotiation process (either directly or in a counseling capacity) with a prospective employer so that you may raise the necessary points in the discussion phase and prior to your receipt of any agreement you believe is on its way.

If you are interested in these services, please contact Sheree Donath at Sheree@DonathLaw.com or at (516) 804-0274.

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Employers in New York are required to ensure that they have a Sexual Harassment Prevention Policy consistent with the new rules. The policy is to go into effect and be distributed to all employees as of October 9, 2018. The policy must meet certain minimum standards. Policies previously prepared by employers may not comply with the new requirements.

For more information on the minimum standards that must be in the new Sexual Harassment Prevention Policy click here.

To review a copy of the model policy click here.

A copy of the policy should also be posted in an area where employees can easily access it (i.e. breakroom, kitchen, conference area).

New employees should be given the policy before they start working.

Sexual harassment training is also required. Employers must provide training to all employees by October 9, 2019 and employees must complete the training once a year. New employees should receive the training as quickly as possible.

The state has enacted minimum standards necessary for the training. The training must be interactive, include a definition of sexual harassment, include examples of sexual harassment, include federal and state statutory provisions and the possible remedies; include the employees’ rights of redress and the forums where they can raise their complaints, and include information addressing conduct of supervisors and their additional responsibilities. The policy also should contain a provision assuring the employee(s) of no retaliation.

For assistance in reviewing and updating your sexual harassment policy contact Sheree Donath at Sheree@Donathlaw.com

Per the Stop Sexual Harassment in New York City Act, effective September 6, 2018, New York City employers are required to post an anti-sexual harassment rights and responsibilities poster in employee breakrooms or other common areas. These posters must be posted in both English and Spanish. Employers can also choose to post the poster in other languages.

Effective September 6, 2018, New York City employers are also required to distribute a fact sheet on sexual harassment to all employees at the time of hiring. Employers can do so through a separate document or by including the fact sheet within the Employee Handbook, provided the employee receives and is required to review the handbook at the time of hire.

To obtain copies of the poster click here.

To obtain copies of the fact sheet click here.

For more information on your rights in the workplace, contact Sheree Donath at Sheree@Donathlaw.com.

Many employers relocate employees to strategically place them throughout the organization and to remain competitive in the industry. Relocation generally occurs to satisfy the business needs of the company. Many companies maintain relocation policies and offer key employees incentives to consider relocation.

Your employer has asked you to relocate for work and has provided you with the terms the company is offering you in exchange for your agreement to relocate. Before agreeing to the relocation there are certain factors an employee should consider to ensure that the employee understands the offer being made, the incentives being offered, and the fine print of the offer. The list below are just some of the factors to contemplate before agreeing to the big move:

(a) will you receive a relocation agreement?

(b) will the agreement provide you with a guaranteed term of employment or will you still be an at will employee?

(c) who will pay for relocation costs?

(d) will the company pay for you to re-relocate after the term of the engagement?

(e) if you are relocating mid-year will you receive a bonus and if so, who (the original team or new team) will pay the bonus? Will you be receiving a guaranteed bonus amount?

(f) are there specific grounds for termination?

(g) will you have a job to come back to and if so, what will the role be?

(h) do you have the option of staying on? or relocating to a new location?

(i) are there any tax implications?

(j) will the company be relocating you and your family or just you?

(k) what expenses are reimbursable?

(l) are there any repayment triggers and if so, what is the repayment schedule?

Relocation is a big move. It can be highly beneficial for your career. However, it can also be financially devastating to you and your family if not carefully considered and negotiated. If you are considering relocating for your employer, you should speak with an attorney to ensure that you understand the terms of the offer and any document you are being asked to sign.

To schedule a consultation to find out more about the terms of your relocation package or to obtain advice for discussions with your employer about potential relocation contact Sheree Donath at Sheree@DonathLaw.com or at (516) 804-0274.

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Very often an employee is fired from their job without any notice. The employee is told to pack up their belongings and to leave effective immediately. At times, the employee is not even able to return to their workspace to obtain their personal items but is marched out of the door with or without security accompanying the employee. While the employee may not have done anything improper, the immediate dismissal appears to others inside and outside of the workplace as if the employee committed some kind of misconduct warranting the immediate termination.

For employees who are being terminated without any notice, there are certain questions that should be raised at the time of the termination or immediately afterward. Some of these items include, among others:

(a) what reason for my termination will be told to my colleagues?

(b) what will be told to outside vendors, suppliers, customers, clients, etc. that I have been working with about my departure?

(c) will I have an opportunity to say goodbye to my colleagues?

(d) can I assist in sending a departure announcement to my colleagues?

(e) what will be told to prospective employers who contact you for a reference?

(f) why am I being terminated without any notice?

(g) will there be a message put on my email or will my email be forwarded to someone else for response?

These are a few key components to raise in your termination meeting or shortly afterward. These questions, among others, are important, because your reputation is important. If you do not find out the answers to these questions, it is possible that people will assume your immediate termination was due to some wrongdoing that you were apart of and that inaccurate assumption may follow you when you are looking for new employment. Rumors are spread quickly in the workplace. Because of this it is important for employee’s to take proactive measures to halt them, so that they do not have to take steps to try to defeat them.

If you have recently been fired and want to understand your rights and whether you were fired improperly or illegally, contact Sheree@Donathlaw.com to schedule a consultation.

Most employment contracts or offer letters state that the employee is “at will”. So what does this mean?

If you are an “at will employee” you can be fired from your job for any reason, provided that the reason for your termination does not violate any laws. Thus, unless the employee has an employment contract that says otherwise, your employer can terminate the employee’s employment without just cause and without giving the employee a warning. Similarly, an “at will” employee can depart from employment without any reason or warning or notice to the employer.

As an at will employee, an employer can terminate the employee for good cause, bad cause or no cause at all.

Today many employees will receive offer letters that clearly set forth that the new employment relation is “at will”. This “at will” relation is typically reaffirmed in an employer’s handbook or policies distributed to its employees. The majority of employees at most companies are “at will” employees, as contracts with fixed employment terms are commonly reserved for the high level executives of the company.

Exceptions to the “at will” relation do exist. An employer cannot terminate an employee’s employment, even if the employee is an “at will” employee, if doing so would violate the law. Thus, the employee cannot be terminated so that the employer does not have to pay the employee an earned bonus, because the employee filed for workers’ compensation, because the employee appeared in court under a subpoena for jury duty, because the employee refused sexual advances of the employer, or because the employee reported the employer’s illegal acts to authorities, or if the decision to terminate the employee was based on the employee being a member of a protected class, among other reasons.

There are pros and cons to the “at will” relation. One pro is that it is easier for an employee to depart from the company. Some cons being that employers are quicker to fire employees and not to modify the work environment, if needed.

Donath Law, LLC can help you understand the “at will” relationship. For more information or to have your offer letter/ employment contract reviewed prior to your accepting employment or if you are thinking of departing from your employment, contact Sheree Donath at Sheree@DonathLaw.com to schedule a consultation.

Some executive contracts contain a provision that allows the executive to resign from the job for “Good Reason”. Contracts that contain a “Good Reason” provision for resignation will also contain a definition of what constitutes good reason.

The definition of Good Reason may include some or all of the following:

(a) a change in Control;

(b) a material diminution of the executive’s job responsibilities;

(c) a change in reporting structure

(d) a material reduction in the executive’s compensation

(e) a material breach in any of the terms in the executive’s employment agreement;

If an executive resigns for “Good Reason” the contract generally requires the executive to provide written notice of the resignation for Good Reason as well as the specific reason the executive is resigning for “Good Reason”. Most executive contracts then allow the company a set period of time to “cure” the “Good Reason”. This may be 10, 20, 30 or even 60 days. If the company cannot cure or chooses not to cure the “Good Reason” then the executive’s termination/ resignation for “Good Reason” moves forward.

Many “Good Reason” provisions are also tied to a severance component for the executive.

In negotiating executive contracts, it is important to ensure that the terms specific to the employee’s employment are set forth within, including, among others: the employee’s title; reporting structure; office location; a specific definition of “Good Reason”; any severance or payments the executive would be offered for resignation for “Good Reason”; and whether the employee’s non-compete/non-solicitation provisions will continue if there is a resignation for “Good Reason”.

Contact Sheree@DonathLaw.com to schedule a consultation to review or negotiate the terms of an executive employment agreement or to obtain assistance in resigning for “Good Reason” under your contract.

Earlier this week, the U.S. Supreme Court ruled that employees who agreed to arbitrate their claims and not to join a class action could not join together to enforce wage and hour claims. The Court determined that arbitration agreements, as written, should be upheld. The negative result of the Court’s decision is that many employees will not raise claims against their employers.

Arbitration clauses require the employee (or former employee) to resolve their claims in Arbitration rather than in Court. Employers like the arbitration process rather than Court because arbitration is confidential. Employers also like Arbitration because many employers feel that the cost of arbitration may result in less employees raising claims.

Many employees who have signed an arbitration agreement are concerned about the cost of raising claims against their employer in Arbitration. Where in Court, the employee is not required to pay the Judge for the Judge’s time, in Arbitration, the employee must pay an hourly rate for the Arbitrator’s time. Therefore, an employee bringing wage and hour claims may be prevented from doing so by the large cost the employee may have to incur to bring such claims. If employees were permitted to ban together to bring such claims, then it is more likely that the overall payout (if the employees are successful) would outweigh the costs incurred by the employee. It may not be cost effective for employees to raise claims on an individual basis. Specifically, the employee may be successful in obtaining damages, but still be out of pocket for the costs of the Arbitrator.

If an employee is asked to sign an arbitration agreement or an agreement with an arbitration provision, the language should be reviewed carefully. The employee should understand what is being agreed upon, what rights are being given up and what that may mean if the employee raises claims in the future. These provisions, like all other contract provisions, should be reviewed and negotiated.

To have your arbitration agreement or provision reviewed, contact Sheree Donath, Esq. at Sheree@DonathLaw.com. 

It is very common in New York employment for an employer to require an employee to sign a Non-Compete Agreement. However, not all non-compete agreements are enforceable. Enforceability of the agreement is dependent on the specific language in the agreement and the limitations on the person’s future employment. A non-compete agreement may also be negotiated, modified and limited. If you have received a non-compete agreement, you should have an attorney review it prior to your signing it so that you understand the requirements and the obligations on you upon your signing and in the future. Below are some questions Donath Law, LLC is often sked regarding non-compete agreements. To understand your non-compete agreement, contact Sheree Donath at Sheree@DonathLaw.com to schedule a consultation.

What is a Non-Compete Agreement?

–     Non-compete agreement is generally when an employee agrees not to work in the same or similar role in competition with its employer both during the employee’s employment and for a period of time afterwards.

How is “Competition” defined?

–     Some employers provide a detailed definition of this term.

–     Some employers specify a certain number of companies/organizations that they deem to be competitors.

–     Some employers intentionally leave this term vague so that broadly covers an infinite number of jobs in the industry and at times, covers jobs outside the industry.

What is the difference between a Non-Compete and Non-Solicitation Agreement?

–     Non-compete prevents you from working in competition with your employer.

–     Non-Solicit agreement prevents you from taking (poaching) employees and/or clients/ customers/ prospective clients or customers from your employer.

–     In some industries a non-solicitation agreement, (i.e. sale) is basically a non-compete agreement.

What are some documents that a Non-Compete Agreement may be found in?

–     Employment Agreement

–     Confidentiality Agreement

–     Relocation Agreement

–     Retention Agreement

–     Workplace Inventions Agreement

–     Severance Agreement

–     Deferred Compensation Agreement

–     Bonus Agreement 

Are Non-Compete Agreements enforceable in New York?

Generally, the answer is Yes. This may be dependent on the geographic scope of the agreement (i.e. global or within 10 miles of the employer); the time of the non-compete (i.e. 3 years vs. 1 year); and the breadth of the restrictions on your future employability (i.e. will you be prevented from doing anything for the company even being a janitor or prevented only from performing the same or similar job functions) 

How are Non-Compete Agreements generally enforced?

–     Court

–     Self-enforcement – i.e. job application; offer letter; employment agreement

–     Notification by former company to new company

Does my employer have to pay me to sign a Non-Compete before I am employed?

–     No. Your employment with the company is generally sufficient consideration for your signing a non-compete agreement.

Does my employer have to pay me to sign a Non-Compete if given to me once I start working?

–     No. Your continued employment is generally sufficient consideration for your signing a non-compete agreement.

What happens if I refuse to sign a Non-Compete agreement?

–     The employer may refuse to hire you or if you are already employed, you may be terminated.

Can I negotiate the terms of my Non-Compete?

–     A non-compete agreement is a contract. Like any contract, it should be reviewed by an attorney and negotiated, if needed. The terms of the non-compete should be limited to specific competitors, the duration should be shortened (or you may be able to get the company to pay for the time you are unable to work in the industry), and the geographic scope should be limited.

What is some problematic language in Non-Compete agreements that I should be aware of when reviewing a proposed agreement?

–     Words like “prospective”

–     Undefined terms in the agreement

–     Statements that are not clear or seem to be purposely confusing

–     Different time periods restricting your ability to compete or solicit

–     Inability to work at companies that do any kind of work that your employment may touch upon or may even be a separate and distinct part of the organization that you are not involved in

–     Inability to work doing a certain type of work at any company (i.e. advertising, marketing, sales, intellectual property, etc.)

As summer approaches many companies are now hiring summer interns. For years, many employers in for profit businesses would hire interns and not pay them. The thought being that the intern did not need to get paid because the intern was getting the benefit of experience and possibly a “foot in the door.” However, in most situations, failing to pay an intern is a violation of New York State’s Minimum Wage Act as well as the Federal Fair Labor Standards Act. Interns that meet the requirements of an employee, must be paid and must also receive, if applicable, overtime pay.

According to the New York State Department of Labor fact sheet, in New York an internship can be unpaid only if it meets ALL of the below 11 criteria:

1. The training, even though it includes actual operation of the employer’s facilities, is similar to training provided in an educational setting.

2. The training is for the benefit of the intern; any benefit to the employer must be incidental.

3. The intern does not displace regular employees and works under close supervision (i.e. job shadowing).

4. The activities of the intern do not provide an immediate advantage to the employer, but may actually detract from productivity for the employer.

5. The intern is not necessarily entitled to a job at the end of the internship and is free to work elsewhere in the same field.

6. The intern is notified, in writing, that they will not receive any wages and are not considered employees for minimum wage purposes.

7. Any clinical training is done under the supervision and direction of people with knowledge and experience in the activity.

8. The intern does not receive any employee benefits.

9. The training is general and qualifies the intern to work in any similar business; it is not designed specifically for a job with the employer.

10. the screening process for an internship is different than a screening process for employment.

11. Advertisements, postings or solicitation for the program clearly discusses education and training and not employment.

For more information about the above criteria visit the New York State Department of Labor by going to the following website: https://www.labor.ny.gov/formsdocs/factsheets/pdfs/p725.pdf   

The U.S. Department of Labor (“DOL”) also set forth new guidelines in determining if an intern is really an employee under the Fair Labor Standards Act. The text is flexible and may depend on the “unique circumstances of the case”.  See https://www.dol.gov/whd/regs/compliance/whdfs71.htm

The DOL follows the 7 point primary beneficiary test. The seven factors are: The extent that the (a) intern and employer clearly understand that there is no expectation of compensation; (b) internship provides training similar to a classroom setting; (c) internship is tied to the intern’s education by coursework or academic credit; (d) internship accommodates the intern’s academic commitments; (e) internship is limited in duration to the time in which it provides the intern with beneficial learning; (f) the intern’s work compliments rather than displaces paid employees; (g) the intern and employer understand that the internship does not guarantee a paid job. If analysis of the circumstances reveals that the intern is actually an employee then the intern is entitled to minimum wage and overtime pay under the Fair Labor Standards Act.