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Standing Order with Automatic Update Service

Author Name Daniel A. Cohen
Joshua Feinstein
520 Pages  
Published date 2016
ISBN no. 978-1-62881-142-1
eBook ISBN no. 978-1-62881-143-8
Condition New
 
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Title
Dedication
About This Book
Acknowledgments
About the Authors
About the Contributors
Chapter 1: The Employment Contract
1-1 THE EMPLOYMENT RELATIONSHIP
1-1:1 Definitions
1-1:2 Distinction Between an Employee and an Independent Contractor
1-2 EMPLOYMENT FOR A DEFINITE TERM
1-2:1 Linking Term of Employment to an Event
1-2:2 Permanent or Lifetime Employment
1-3 JUST CAUSE AND WRONGFUL DISCHARGE
1-3:1 Grounds for Just Cause for Termination
1-3:1.1 Theft and Dishonesty
1-3:1.2 Insubordination
1-3:1.3 Disloyalty or Breach of Fiduciary Duty
1-3:1.4 Incompetence and Inefficiency
1-3:1.5 Employer Dissatisfaction
1-3:1.6 Illness or Disability
1-3:1.7 Absenteeism and Tardiness
1-3:2 Waiver
1-3:3 After-Acquired Evidence
1-3:4 Constructive Discharge
1-3:5 Common-Law Damages for Wrongful Discharge
1-3:5.1 Compensatory Damages
1-3:5.2 Liquidated Damages
1-4 EMPLOYMENT AT WILL
1-4:1 Limits to Employment at Will
1-4:2 Lack of Common Law Exceptions
1-4:3 Retaliatory Discharge of Attorneys
1-4:4 Change in Terms of Employment
1-5 STATUTE OF FRAUDS
1-5:1 Unenforceability of Oral Multi-Year Contracts
1-5:2 Promissory Estoppel
1-5:3 Fraudulent Inducement
1-5:4 Contract for an Indefinite Term
1-5:5 Contracts Performable Within One Year
1-5:6 Renewal of Contracts
1-6 EMPLOYEE HANDBOOKS
1-6:1 Reliance Test
1-6:2 Guidelines Versus Promises
1-6:3 Contractual Limitations on Pre-Termination Procedures
Chapter 2: The Employee’s Common Law Duties and Restrictive Covenants
2-1 THE EMPLOYEE’S DUTY OF LOYALTY
2-1:1 Duty Not to Compete With a Current Employer
2-1:2 Duty Not to Divert the Employer’s Business Opportunities
2-1:3 Duty to Protect Confidential Information and Trade Secrets
2-1:3.1 What Is a Trade Secret?
2-1:3.2 When Are Customer Lists Protected?
2-1:3.3 Misappropriation and Unfair Competition
2-1:4 Remedies
2-1:4.1 Damages
2-1:4.2 Injunctive Relief
2-2 RESTRICTIVE COVENANTS
2-2:1 Covenants Not to Compete
2-2:1.1 Sale of a Business
2-2:1.2 Protection of Trade Secrets or Customer Information
2-2:1.3 Unique or Extraordinary Services
2-2:1.4 Learned Professions
2-2:2 Reasonableness Requirement for Restrictive Covenants
2-2:2.1 Territory
2-2:2.2 Duration
2-2:2.3 Scope
2-2:2.4 Court’s Discretion as to Partial Enforcement
2-2:3 Effect of Employer Breach
2-2:4 Forfeiture Provisions and the Employee Choice Doctrine
2-2:5 Measure of Damages
2-2:6 Liquidated Damages
2-2:7 Choice of Law Provision
2-3 SOLICITATION OF A COMPANY’S EMPLOYEES
2-3:1 Common-Law Claims
2-3:2 Covenants Not to Solicit Employees
Chapter 3: Wage and Hour Provisions
3-1 OVERVIEW
3-2 PAYMENT OF WAGES
3-2:1 Definitions
3-2:2 Frequency of Payment
3-2:2.1 Manual Workers
3-2:2.2 Railroad Workers
3-2:2.3 Commission Salesperson
3-2:2.4 Clerical or Other Worker
3-2:3 Payment of Commissions to Independent Contractor Salespersons
3-2:4 Direct Deposit of Wages
3-2:5 Deductions From Wages
3-2:5.1 Permissible Deductions
3-2:5.1a Deductions in Accordance With Law
3-2:5.1b Authorized Deductions for Benefit of Employee
3-2:5.1c Deductions for Overpayments
3-2:5.1d Deductions for Advances
3-2:5.2 Prohibited Deductions
3-2:6 Notice and Recordkeeping Requirements
3-2:6.1 Notice and Acknowledgment of Pay Rate and Payday
3-2:6.2 Penalties for Failure to Provide Notice
3-2:6.3 Wage Statements
3-2:6.4 Penalties for Failure to Provide Wage Statement
3-2:6.5 Recordkeeping Requirements
3-2:6.6 Other Notice Requirements
3-2:7 Rules Against Retaliation
3-2:8 Prohibition on Sex-Based Pay Discrimination
3-3 MINIMUM WAGE AND OVERTIME REQUIREMENTS
3-3:1 Minimum Wage Act
3-3:2 Exceptions to Minimum Wage Requirements, or Who Is Not an Employee?
3-3:3 Enforcement of the Minimum Wage Act
3-3:4 Minimum Wage Orders
3-3:4.1 Introduction
3-3:4.2 Minimum Wage Order for Miscellaneous Industries and Occupations
3-3:4.2a Calculation of the Basic Minimum Hourly Wage Rate
3-3:4.2b Overtime Rate
3-3:4.2c Basis of Wage Payment
3-3:4.2d Call-In Pay
3-3:4.2e Split Shift and Spread of Hours Pay
3-3:4.2f Allowances for Meals, Lodging, Tips, and Uniforms
3-3:4.2g Rehabilitation Programs
3-3:4.2h Required Posting
3-3:4.3 Non-Profitmaking Institutions
3-3:4.3a Definitions
3-3:4.3b Allowances
3-3:4.3c Personnel Records
3-3:4.4 Minimum Wage Order for Hospitality Industry
3-3:4.4a Definitions
3-3:4.4b Basic Minimum Hourly Wage
3-3:4.4c Tip Credits
3-3:4.4d Overtime Hourly Rates
3-3:4.4e Call-In Pay
3-3:4.4f Spread of Hours Greater Than Ten in Restaurants and All-Year Hotels
3-3:4.4g Uniform Maintenance Pay
3-3:4.4h Costs of Purchasing Required Uniforms
3-3:4.4i Credits for Meals and Lodging
3-3:4.4j Written Notice of Pay Rates, Tip Credit, and Pay Day
3-3:4.4k Statement to Employee
3-3:4.4l Posting Requirements
3-3:4.4m Meals and Lodging
3-3:4.4n Working at Tipped and Non-Tipped Occupations on the Same Day
3-3:4.4o Employment Covered by More Than One Wage Order
3-3:4.4p Tip Sharing and Tip Pooling
3-3:4.4q Tip Sharing
3-3:4.4r Tip Pooling
3-3:4.4s Records of Tip Sharing or Tip Pooling
3-3:4.4t Charge Purported to be a Gratuity or Tip
3-3:4.4u Administrative Charge Not Purported to Be a Gratuity or Tip
3-3:4.4v Tips Charged on Credit Cards
3-3:4.5 Minimum Wage Order for Building Service Industry
3-3:4.5a Definitions
3-3:4.5b Unit Rate for Janitors in Residential Buildings
3-3:4.5c Basic Minimum Hourly Wage Rate and Overtime Rate
3-3:4.5d Allowances for Apartments
3-3:4.5e Allowances for Utilities
3-3:4.5f Allowances for Tips or Gratuities
3-3:4.5g Required Uniforms
3-3:4.5h Allowance for Tools and Supplies
3-3:4.5i Other Allowances
3-3:4.5j Employer Records
3-3:4.5k Wage Statement
3-3:4.5l Payments in Addition to Regular Wages
3-3:4.5m Count of Units
3-3:4.5n Employer Residing on Building Premises
3-3:4.5o Limitations as to Minimum Weekly Wage of Janitors
3-3:4.6 Minimum Wage Order for Farmworkers, Including Occupations in Agriculture Particularly Hazardous for the Employment of Children Under the Age of 16
3-3:4.6a Definitions
3-3:4.6b Basis of Wage Payments
3-3:4.6c Basic Minimum Wage Rate
3-3:4.6d Piece Rate
3-3:4.6e Allowances
3-3:4.6f Posting and Notification
3-3:4.6g Employer Records
3-4 WHITE COLLAR EXEMPTIONS TO OVERTIME
3-4:1 Generally
3-4:2 Executive Exemption
3-4:3 Administrative Exemption
3-4:4 Professional Exemption
3-4:5 Outside Salespersons
3-5 HOURS OF WORK
3-5:1 Hours That Constitute a Day’s Work
3-5:2 One Day Rest in Seven
3-5:3 Meal Periods
3-5:3.1 One Employee Shift Exception
3-5:3.2 Waiver of Meal Period
3-6 DOMESTIC WORKERS
Chapter 4: Laws Against Discrimination
4-1 OVERVIEW OF APPLICABLE STATUTES
4-1:1 New York State Human Rights Law
4-1:1.1 Remedies Under the NYSHRL
4-1:2 New York City Human Rights Law
4-1:2.1 Local Civil Rights Restoration Act of 2005
4-1:2.2 Remedies Under the NYCHRL
4-1:3 Additional Sources of State Law
4-1:3.1 New York State Constitution
4-1:3.2 Labor Law
4-1:3.3 Military Law
4-1:3.4 Correction Law
4-1:4 Federal Sources of Law
4-1:4.1 Title VII
4-1:4.2 Americans with Disabilities Act
4-1:4.3 Rehabilitation Act
4-1:4.4 Age Discrimination in Employment Act
4-1:4.5 Uniformed Services Employment and Reemployment Rights Act
4-1:4.6 42 U.S.C. § 1981
4-1:4.7 42 U.S.C. § 1983
4-1:5 Summary of Major Differences Among Local, State, and Federal Employment Discrimination Laws
4-2 PROHIBITED CONDUCT
4-2:1 Race and Color Discrimination
4-2:1.1 Reverse Discrimination
4-2:2 National Origin Discrimination
4-2:3 Alienage and Citizenship Discrimination
4-2:4 Sex and Gender Discrimination
4-2:4.1 Transgendered Persons and Gender Dysphoria
4-2:4.2 Sex-Plus Discrimination
4-2:4.3 Sexual Orientation Discrimination
4-2:4.4 Pay Equality
4-2:5 Age Discrimination
4-2:5.1 Exceptions to the Prohibition Against Age Discrimination
4-2:5.1a Bona Fide Executive or High Policy Making Position
4-2:5.1b Employee of Nonpublic Institution of Higher Education Who Attains 70
4-2:5.1c Termination of Employees Who Are Unable to Perform Duties
4-2:5.1d Retirement Policy or System That Is Not Merely a Subterfuge to Avoid the Purposes of the NYSHRL
4-2:5.1e Exceptions to the Prohibition Against Age Discrimination Under the NYCHRL
4-2:5.2 Minimum Age Restrictions
4-2:6 Religious Discrimination
4-2:6.1 Religious Accommodations Under the NYSHRL
4-2:6.1a Sabbath Accommodation Under the NYSHRL
4-2:6.2 Religious Accommodations Under the NYCHRL
4-2:6.3 Religious Accommodations Under Title VII
4-2:6.3a Undue Hardship Analysis for Religious Accommodation Claims Under Title VII
4-2:6.4 Undue Hardship Analysis for Religious Accommodation Claims Under the NYCHRL and Title VII Compared
4-2:7 Marital Status Discrimination
4-2:8 Pregnancy Discrimination
4-2:8.1 Pregnancy Discrimination Under the NYSHRL
4-2:8.2 Pregnancy Accommodations Under the NYSHRL
4-2:8.3 Pregnancy Discrimination and Accommodations Under the NYCHRL
4-2:8.4 U.S. Pregnancy Discrimination Act
4-2:9 Familial Status
4-2:10 Disability Discrimination
4-2:10.1 Definition of Disability
4-2:10.1a ADA
4-2:10.1b NYSHRL
4-2:10.1c NYCHRL
4-2:10.2 Reasonable Accommodations
4-2:10.2a ADA
4-2:10.2b Reasonable Accommodations Under the NYSHRL
4-2:10.2c Duty to Provide Reasonable Accommodations Under the NYCHRL
4-2:10.3 The Interactive Process
4-2:11 Family, Medical, and Parental Leave
4-2:11.1 Discrimination in Leave Prohibited
4-2:11.2 New York City Earned Sick Time Act
4-2:11.3 Federal Family and Medical Leave
4-2:11.3a Covered Employers
4-2:11.3b Joint Employers and Successors in Interest
4-2:11.3c Eligible Employees
4-2:11.3d Employee Entitlements to and During Leave
4-2:11.3e Employer’s Rights
4-2:11.3f Qualifying Reasons for Leave

4-2:11.3f1 Serious Health Condition

4-2:11.3f2 Continuing Treatment

4-2:11.3f3 Substance Abuse

4-2:11.3f4 Leave for Pregnancy, Birth, and Adoption and Foster Care

4-2:11.3f5 Leave Because of Qualifying Exigency

4-2:11.3f6 Military Caregiver Leave

4-2:11.4 Leave of Absence for Military Spouses: State Law Provisions
4-2:12 Persons With Criminal Convictions
4-2:12.1 New York State Correction Law
4-2:12.2 NYCHRL
4-2:12.3 Local “Ban the Box” Laws
4-2:12.3a New York City
4-2:12.3b Buffalo
4-2:12.3c Rochester
4-2:12.3d Syracuse
4-2:13 Unpaid Interns
4-2:14 Employment Status Discrimination Under the NYCHRL
4-2:15 Caregiver Status Discrimination Under the NYCHRL
4-2:16 Consumer Credit History Discrimination
4-3 PROVING DISCRIMINATION
4-3:1 Proving Discrimination Under the NYSHRL
4-3:2 Proving Discrimination Under the NYCHRL
4-3:3 Mixed Motive Cases
4-3:4 Use of After-Acquired Evidence
4-3:5 Disparate Treatment and Disparate Impact Liability
4-3:6 Harassment
4-3:6.1 Quid Pro Quo Harassment
4-3:6.2 Sexual Favoritism
4-3:6.3 Hostile Work Environment
4-3:6.4 Constructive Discharge
4-3:6.5 Employer Liability
4-3:6.5a The Ellerth-Faragher Defense to Supervisor Harassment
4-3:6.5b The Negligence Standard Governing Co-Worker Harassment
4-3:6.6 Harassment Under the NYCHRL
4-3:6.6a Threshold for Actionable Harassment Under the NYCHRL
4-3:6.6b Employer Liability Under the NYCHRL
4-3:7 Retaliation
4-3:7.1 Statutory Provisions
4-3:7.2 Elements and Rebuttal of Prima Facie Case
4-3:7.3 Protected Activity
4-3:7.4 Unfavorable Employment Action
4-3:7.5 Causality
4-3:8 Liable Parties
4-3:9 Employer
4-3:9.1 When Is a Worker an Employee?
4-3:9.2 Single Employer Doctrine
4-3:9.3 Joint Employer Doctrine
4-3:10 Aiding and Abetting Liability
4-3:11 Individual Liability Under Reconstruction Era Federal Statutes
4-4 ADMINISTRATIVE REMEDIES
4-4:1 New York State Division of Human Rights
4-4:1.1 Filing of the Complaint, Investigation, and Determination of Probable Cause
4-4:1.2 Work-Sharing Agreement Between the Division of Human Rights and the EEOC
4-4:1.3 Conciliation
4-4:1.4 Dismissals Based on Administrative Convenience, Timeliness, or Annulment of the Complainant’s Election of Remedies
4-4:1.5 Pre-Hearing Settlement Conference
4-4:1.6 Hearings
4-4:1.7 Orders After Hearing
4-4:1.8 Preliminary Relief
4-4:1.9 Subpoenas
4-4:1.10 Judicial Review
4-4:2 New York City Commission on Human Rights
4-4:2.1 Powers and Duties of the City Commission
4-4:2.2 Filing the Complaint, Investigation and Conciliation
4-4:2.3 Dismissals for Administrative Convenience
4-4:2.4 Dismissals for Lack of Jurisdiction or No Probable Cause
4-4:2.5 Provisional Relief
4-4:2.6 Hearing Procedures
4-4:2.7 Civil Penalties
4-4:2.8 Judicial Review
4-4:2.9 Other Local Commissions
4-5 PRIVATE CAUSES OF ACTION AND STATUTES OF LIMITATIONS
4-5:1 NYSHRL
4-5:2 NYCHRL
4-5:3 Tolling
4-5:4 Relation-Back Doctrine
4-5:5 Election of Remedies
4-5:6 Notice of Claim
4-5:7 Accrual of Discrimination Claims
Chapter 5: Whistleblower Programs and Protections
5-1 OVERVIEW
5-2 NEW YORK STATE STATUTES
5-2:1 New York Whistleblower Law
5-2:1.1 Covered Employers and Employees
5-2:1.2 Protected Activity
5-2:1.3 Retaliation
5-2:1.4 Causation
5-2:1.5 Procedure
5-2:1.6 Relation to Other Laws and Remedies
5-2:1.7 Available Remedies
5-2:2 New York Healthcare Whistleblower Law
5-2:2.1 Covered Employers and Employees
5-2:2.2 Protected Activity
5-2:2.3 Retaliatory Action
5-2:2.4 Causation
5-2:2.5 Procedure
5-2:2.6 Relation to Other Laws and Remedies
5-2:2.7 Available Remedies
5-2:3 New York Public Sector Whistleblower Law
5-2:3.1 Covered Employers and Employees
5-2:3.2 Protected Activity
5-2:3.3 Adverse Personnel Action
5-2:3.4 Causation
5-2:3.5 Procedure
5-2:3.6 Relation to Other Laws and Remedies
5-2:3.7 Available Remedies
5-2:4 New York False Claims Act
5-2:4.1 New York False Claims Act Liability and Qui Tam Suits
5-2:4.1a Elements of NYFCA Claims
5-2:4.1b Filing a Qui Tam Claim – The Litigation Process
5-2:4.1c Awards to Qui Tam Relator
5-2:4.1d Statutory Bars to Qui Tam Actions
5-2:4.2 Anti-Retaliation Provisions of the New York False Claims Act
5-2:4.2a Covered Employers and Employees
5-2:4.2b Protected Activity
5-2:4.2c Employer Awareness
5-2:4.2d Adverse Action
5-2:4.2e Causation
5-2:4.2f Procedure
5-2:4.2g Available Remedies
5-2:5 New York Workers’ Compensation Retaliation Law
5-2:5.1 Covered Employers and Employees
5-2:5.2 Protected Activity
5-2:5.3 Adverse Employment Action
5-2:5.4 Causation Standard
5-2:5.5 Litigation Process
5-2:5.6 Available Remedies
5-2:6 Occupational and Public Safety and Health Protections
5-2:6.1 Public Employee Safety and Health Act
5-2:6.1a Covered Employers and Employees
5-2:6.1b Protected Activity
5-2:6.1c Adverse Action
5-2:6.1d Causation Standard
5-2:6.1e Procedure
5-2:6.1f Available Remedies
5-2:6.2 School Employees Who Report Violence or Weapons
5-2:6.3 Protections for Reporting Violations of Toxic Substances Laws
5-2:6.4 Protections for Reporting Violations of Motor Vehicle Safety Laws
5-2:7 Protections for Workers Reporting Violations of Industry Fair Play Acts
5-2:7.1 Protections for Reporting Violations of the Commercial Goods Transportation Industry Fair Play Act
5-2:7.2 Protections for Reporting Violations of the Construction Industry Fair Play Act
5-2:8 Protections for Healthcare Employees Reporting Patient Care Issues
5-2:8.1 Employees of Long-Term Care Facilities
5-2:8.2 Employees of Facilities for Patients with Developmental Disabilities
5-2:8.3 Employees of Residential Healthcare Facilities
5-2:8.4 Employees of Residential Facilities Providing Social Services
5-3 NEW YORK COMMON LAW
5-4 FEDERAL STATUTES
Chapter 6: Torts and the Workplace
6-1 THE EMPLOYER’S LIABILITY TO THIRD PARTIES
6-1:1 Respondeat Superior
6-1:1.1 Scope of the Employer’s Liability
6-1:1.2 Liability for Intentional Acts
6-1:1.3 Liability for Independent Contractors
6-1:1.4 Negligence by the Employer
6-1:2 Principal-Agent Liability
6-1:2.1 Liability for Employee Fraud
6-1:2.2 Ratification
6-1:2.3 Adverse Agents
6-2 WORKERS’ COMPENSATION
6-2:1 Types of Benefits Available
6-2:1.1 Medical Treatment
6-2:1.2 Compensation for Period of Disability
6-2:1.3 Death Benefits
6-2:2 Overview of Claim Process
6-2:2.1 Notice of Claim
6-2:2.2 Filing of Claim
6-2:2.3 Obligation to Pay or Timely Controvert Claims
6-2:2.4 Payment of Medical Bills
6-2:2.5 Medical Examination of Employee
6-2:2.6 Settlement
6-2:2.7 Pre-Hearing Conference
6-2:2.8 Hearing and Award
6-2:2.9 Modification of Award
6-2:2.10 Appeal
6-2:3 Exclusive Remedy Rule and Its Exceptions
6-2:3.1 Failure to Secure Workers’ Compensation
6-2:3.2 Intentional Injury
6-2:3.3 Written Contract to Contribute or Indemnify
6-2:3.4 Grave Injury
6-2:4 Requirement That Employment Have Causal Nexus to Injury
6-2:4.1 Personal Activity and Horseplay
6-2:4.2 Travel to and From the Workplace
6-2:5 Exceptions to Employee Eligibility for Workers’ Compensation
6-2:6 Determination of Whether Injured Party is an Employee
6-2:7 Special Employers
6-2:8 Work-Related Stress
6-2:9 Liens and Third-Party Actions
6-2:10 Fraud
6-2:11 Employer Retaliation
Chapter 7: Protected Speech and Privacy
7-1 SPEECH PROTECTIONS
7-1:1 Overview
7-1:2 Matter of Public Concern
7-1:3 Balancing Test
7-1:4 Employee Statements Pursuant to Official Duties
7-1:5 Affirmative Defense
7-1:6 New York State Law Speech Protections
7-1:6.1 State Constitutional Protections
7-1:6.2 State Labor Law Protections
7-1:6.3 State Executive Law Protections
7-2 ROMANTIC RELATIONS
7-3 DRUG TESTING
7-3:1 Introduction
7-3:2 Public Employers
7-3:3 Private Employers
7-3:4 New York State Law
7-4 MEDICAL EXAMINATIONS
7-4:1 Federal Law
7-4:2 State Law
7-5 DEFAMATION AND EMPLOYMENT REFERENCES
Chapter 8: Reductions in Force
8-1 NEW YORK WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT
8-1:1 Generally
8-1:2 Comparison Between the New York and Federal Acts
8-1:3 Exceptions to the NY WARN Act Requirements
8-1:4 Protections Under the National Labor Relations Act
8-1:5 Penalties and Damages
Chapter 9: Unemployment Insurance
9-1 FEDERAL-STATE SYSTEM
9-2 NEW YORK UNEMPLOYMENT INSURANCE
9-3 ELIGIBILITY
9-3:1 Employers
9-3:2 Employees
9-3:3 Eligible Claimants
9-4 BENEFITS AND CONTRIBUTIONS
9-4:1 Calculation and Duration of Benefits
9-4:2 Employer Contributions
9-5 GROUNDS FOR DENIAL
9-5:1 Voluntary Separation
9-5:2 Refusal of Employment
9-5:3 Misconduct
9-5:4 Criminal Act
9-5:5 Industrial Controversy
9-5:6 Willful False Statement
9-6 CLAIMS
9-6:1 Making a Claim for Benefits
9-6:2 Initial Determinations
9-6:3 Administrative Law Judge Hearings
9-6:4 Unemployment Insurance Appeal Board
9-6:5 Benefits During Pendency of Appeal
9-7 PENALTIES
9-7:1 Civil Penalties
9-7:2 Criminal Penalties
Appendix
Table of Cases
Table of Statutes and Rules
Index
Back Page
 
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