An Employer’s Responsibilities To Hospitality Employees In New York

The following article will cover:

• The legal implications of misclassifying employees as independent contractors in New York.
• Helpful guidelines for conducting fair and compliant employee performance evaluations that align with labor laws in New York State.
• The impact of the Occupational Safety and Health Act on employers and managers in the hospitality industry in New York.

What Are The Legal Implications Of Misclassifying Employees As Independent Contractors In New York?

In the complex landscape of New York employment law, the misclassification of employees as independent contractors can lead to severe legal repercussions, especially given the Wage Theft Protection Act. At the heart of this issue lies the very reason why some employers may choose to misclassify.

Primarily, the classification of an individual as an independent contractor saves the employer significant costs. Instead of being on the company's payroll, an independent contractor is treated as a service provider. This distinction allows employers to sidestep expenses tied to unemployment insurance, workers' compensation, and tax deductions, which can amount to around 22-24% of an employee's total compensation.

Determining the status of an individual as an independent contractor revolves around several key questions. Does the individual operate as a distinct business entity? Do they offer services to a broad range of clients or companies?

Other factors that can inform this status include the ownership of business tools, the capacity to negotiate rates, evidence of self-promotion, and the potential to profit or face a loss based on business decisions. However, it's worth noting that while these factors are insightful, each case is unique, and various agencies might employ slightly different criteria.

The consequences of misclassification can be profound:

• Workers’ Compensation: Employers might confront significant fines and potential criminal charges.
• Unemployment Insurance: If a misclassified worker files a claim, the employer could be required to cover that claim and might be audited by the New York State Department of Labor, leading to the payment of backdated premiums.
• Tax Implications: If taxes aren’t duly withheld, employers may bear the brunt of both the employee’s and their own share of taxes, not to mention possible federal and state penalties.
• City-Specific Regulations: In New York City, the Bureau of Worker Protection upholds certain employee rights. A failure in compliance can spark audits, penalties, and back payments for entitlements like sick leave.
• Severe Penalties: In egregious cases, misclassification might even be criminalized, resulting in jail time for employers.

For businesses navigating these waters, it's essential to understand that proper classification isn't just a matter of semantics—it has serious legal and financial implications.

What Are The Guidelines For Conducting Fair And Compliant Employee Performance Evaluations That Align With Labor Laws In New York State?

While New York State labor laws don't explicitly govern employee performance evaluations, ensuring fairness and legality in these evaluations is critical. A genuinely fair evaluation is subjective, and often influenced by personal biases and perceptions. So, to ensure that reviews remain fair, it's essential to eliminate or reduce the influence of illegal or inappropriate factors.

Although evaluations are primarily subjective, integrating objective measures can improve their fairness. Using performance scales, backed by measurable data, and having evaluations verified by a second person can help. Furthermore, conducting evaluations with two evaluators present can reduce the risk of inappropriate conversations and the intertwining of personal relationships or favors with performance metrics.

How Does The Occupational Safety And Health Act (OSHA) Affect Employers And Managers In The New York Hospitality Industry?

The Occupational Safety and Health Act is a federal law that has broad implications for all industries, including the hospitality sector in New York. A central tenet of OSHA is the "general duty clause", which mandates that employers must provide a safe working environment, eliminating or addressing hazards swiftly.

For the hospitality industry, compliance with OSHA means promptly addressing issues like spills, managing weight-lifting requirements, or any other potential workplace hazards. New York also has its State Safety Board, though it frequently becomes more involved after incidents in high-risk sectors, like construction.

Violations of OSHA standards can have serious repercussions, ranging from fines to criminal indictments. All industries, including hospitality, must adhere to these standards, ensuring practices like preventing the operation of dangerous machinery by individuals under the influence of drugs or alcohol. While certain industries with inherent dangers like construction might face more stringent requirements, the fundamental objective remains universal: a safe workplace for all.

What Steps Must New York Employers Take To Accommodate Employees With A Disability Under The Americans With Disabilities Act?

The ADA, a federal law, is complemented by the State Disability Act in New York. The term "accommodate" in this context usually implies an interactive dialogue between the employer and the employee once the employer becomes aware of the employee's disability and either the employee requests an accommodation, or there's a clear need for one. For instance, if an employee with limited vision requests Braille or sight-enhancing tools, the employer should engage in a constructive discussion to find suitable solutions.

However, if accommodating the employee imposes an "undue hardship" on the employer – a term that is legally nuanced – they might not be required to accommodate. Still, most accommodations, especially those prompted by recent events like the COVID pandemic, could include altered working hours, provision for sitting when the role typically requires standing, or hybrid work models.

It's crucial to understand that the employee is only expected to perform the essential functions of their job. If their role is primarily answering phones, then they should be able to do so effectively. But this doesn't necessarily mean they must also handle unrelated tasks, like cleaning the workspace. The main concern is whether they can perform core tasks, even with accommodations, especially if they have speech or learning disabilities. For more information on Legal Considerations For Hospitality Employers In New York, an initial consultation is your next best step.