EEOC GUIDANCE ON COVID VACCINATION POLICIES IN THE WORKPLACE

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued guidance how businesses who implement vaccination requirements should handle workers who opt out due to a disability or religion. The EEOC is allowing employers to exclude employees from the workplace when there is no reasonable accommodation possible. Furthermore, administering vaccinations or requesting proof of vaccination for COVID-19 does not constitute a medical examination that would be prohibited by the Americans with Disabilities Act (“ADA”), the EEOC guidance says. “If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace,” the EEOC guidance states. Businesses can require workers provide written proof they received COVID-19 vaccines.


This guidance does not mean employers must implement a COVID-19 vaccination policy; however, it lays out protections for employers who chose to set one. Employers will need to make informed decisions to ensure workplace safety. Reasonable accommodations could include working from home, as well as distancing and PPE (mask mandates) policies. The good news for employees in this EEOC decision is that it is not an outright ban on them working if they choose not to vaccinate for health or religious reasons. However, if the employer can show an unvaccinated employee poses a risk to the health and well-being of fellow employees and cannot be reasonably accommodated, the employer can bar the employee from the workplace. In sum and substance, if an employer is going to mandate a vaccination mandate, it must also explore reasonable accommodations, which also could include FMLA or other personal leave. Employers should act with caution when dealing with employees who express concerns about getting vaccinated because of religious beliefs or health issues. Whether or not to implement a policy is something to discuss with an employment attorney.

At Heiferman & Associates, our labor and employment law attorneys represent employers and employees in a wide variety of matters in state and federal courts, as well as administrative agencies (EEOC, DCR, DHR, and the Dept. of Labor). We advise and represent clients (both employers and employees) in areas including minimum wage, overtime (FLSA and NYLL), unemployment, workers compensation, discrimination (Title VII, NYHRL, NYCCHR, NJ DCR), harassment and other wrongful terminations. We advise employers on litigation avoidance by providing training, audits and review/creation of workplace policies and handbooks. We have extensive experience negotiating and drafting a full range of employment agreements, such as severance, non-compete and non-solicitation, non-disclosure and more. Contact our office for a consultation.

RETURNING TO WORK, WORKPLACE SAFETY AND UNEMPLOYMENT ISSUES AS COVID-19 LOCKDOWNS END

During these uncertain times, employers and employees alike are struggling to determine whether and when to open. The rules are confusing for almost everyone. Many are facing dire economic problems and worried about the wellbeing of themselves and loved ones. Businesses are worried they will lose customers the longer they remain closed.

Employees may lose unemployment benefits if they refuse to return to work and are not protected by law. Knowing this, the looming question is: “Must an employee return to work if required by their employer?“

If an employer requires an employee to return to work, they must return, unless the employee can demonstrate a danger in returning to the workplace that is excused by law, such as health or medical condition. In the case of employers that fit within the definition of the Federal Family and Medical Leave Act (“FMLA”), qualified employees may be entitled to 12 weeks leave to care for themselves or their family member.

The Occupational Safety and Health Act (“OSHA”) permits employees to refuse work if an imminent danger exists or the employer is not taking responsible steps to ensure a safe working environment. If the employer is taking proper steps, including promoting social distancing, cleaning and disinfecting the office regularly, and ensuring workers that tested positive for COVID-19 stay home, OSHA likely will not apply. Other necessary steps an employer will need to take will include requiring customers and workers to wear masks. An employer will likely have to provide masks for customers or not permit them in the workplace. Employers may need to implement policies preventing sick employees from working. Employers are also being encouraged to find ways to permit employees to work from home as much as possible. Obviously, in some industries, this simply is not possible. High risk workers, including those with diabetes, lung diseases or are immunosuppressed, might not be allowed not to return to work.

At Heiferman & Associates, our labor and employment law attorneys represent employers and employees in a wide variety of matters in state and federal courts, as well as administrative agencies such as the EEOC, DCR, DHR, and the Dept. of Labor, throughout New York and New Jersey.  We advise and represent clients (both employers and employees) in areas including minimum wage & overtime (FLSA and NYLL), unemployment & workers compensation, discrimination (Title VII, NYHRL, NYCCHR, NJ DCR), harassment & other wrongful terminations. We advise employers on litigation avoidance by providing training, audits and review/creation of workplace policies and handbooks. We have extensive experience negotiating and drafting a full range of employment agreements, such as severance, non-compete and non-solicitation, non-disclosure and more.

Contact our office for a consultation. We return all calls and e-mails quickly if we are not available.

Paystubs that show wage theft.

Wage Theft Could Put Business Owners Behind Bars

Although wage theft is a crime under both state and federal law, violators rarely face imprisonment. That is why the Heiferman & Associates team, and other employment lawyers in the New York City area, still talk about a case from a few years ago that saw a local restaurant owner thrown in jail for short-changing his employees. 

Paying Straight Time Lead Straight To Jail 

Abdul Jamil Khokhar was sentenced to 60 days behind bars after he got caught paying the workers in his Papa John’s franchises “straight time” wages even when they worked more than 40 hours a week. He had attempted to hide this practice by doctoring his books. He created fictitious names for employees to use in their computerized timekeeping system so it looked like nobody was working overtime. 

When he got caught, Khokhar was required to pay his workers the money he owed them, and fined for his misdeeds, which is what typically happens in these cases. What was surprising was the government’s insistence that he also be locked up. 

Oftentimes, wage theft is treated more like a civil offense even though it is a serious crime. However, as Khokhar’s case reminded everyone, jail time is a possibility. At Heiferman & Associates, our employment lawyers are well-positioned to represent both employees and employers in wage theft cases. Our experience as criminal defense attorneys, combined with our financial and accounting backgrounds means we are ready to take action as soon as our client becomes aware wage theft has occurred or is alleged. 

What Is Wage Theft? 

There are many different things that can be classified as “wage theft.” 

Mr. Khokhar was charged with wage theft because he failed to pay his employees overtime, and went to great lengths to hide his crimes. Failure to pay overtime is a common form of wage theft. Under New York Labor Law (“NYLL”) and the federal Fair Labor Standards Act (“FLSA”), most employees must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay.

Wage theft can also include a failure to pay the minimum wage, tip skimming, bounced checks, or late checks. The FLSA and New York Labor Law want employees to get paid all the money they are owed at the time they are owed it. Anything else can be considered wage theft. 

Disputes over vacation days, bonuses, breaks, and scheduling may also be considered wage theft because benefits are a non-cash form of payment. 

Our firm represents employees and employers in New York and New Jersey in cases where all forms of wage theft may have occurred. Because we have work for both employers and employees, we know what it takes to get these cases resolved quickly and fairly so everyone can move on with their lives. We represent clients in state and federal courts as well as administrative agencies including but not limited to the EEOC, NY DHR, NJ DCR, NY/NJ Departments of Labor and more. We also can provide employers with audits of their business practices to avoid unnecessary litigation.

Experience You Can Trust

If you are considering filing or fighting a wage theft claim, let’s talk. The Heiferman & Associates team of employment attorneys has over 20 years of experience litigating cases, so you can trust us to quickly and efficiently resolve your case. You can contact us today to get the wheels of justice turning.

Man opening pay check with new minimum wage rates in place.

New Minimum Wage Rates Now In Effect

On December 31, 2019, the ball dropped in Times Square, we closed out the decade, and the minimum wage increased. Employers need to make adjustments so their employees get paid what they are owed, and employees need to double-check their pay stubs to ensure they are not getting shorted. 

However, the rate of pay is not the only thing New York City employers and employees should be paying attention to. There are many different payment and benefits issues that can be considered “wage theft.” 

Minimum Wage Violations 

In New York City, the minimum wage is now $15.00 per hour for all size businesses. In Nassau, Suffolk and Westchester counties, it is $13.00 per hour. In the remainder of the state, it is $11.80 per hour. However, there are different hourly rates for workers in the fast-food industry and those who receive tips. These rates remain in effect until December 30, 2020, at which time the minimum wage will again increase.

Employers who do not comply with New York’s minimum wage laws, wage notice requirements, and the federal minimum wage law, are subject to fines and/or prosecution. Employees who are not being paid what they deserve can and should take legal action. 

At Heiferman & Associates, we help both employers and employees ensure compliance with New York’s minimum wage laws, and fight back against bad actors. We represent business owners who are wrongfully accused of minimum wage violations and employees who are not being paid what they deserve. We also assist employers with posting/notice requirements as well as the drafting of employee handbooks. Because we take both types of cases, our team is intimately familiar with New York’s minimum wage law, and its many quirks. 

Other Forms of Wage Theft

As we mentioned above, there are lots of things other than minimum wage violations that constitute “wage theft.” Our firm has experience representing employers and employees in cases where the issue is:

  • Unpaid Wages – Including payment for on the job training, bounced checks, tip skimming, and the timely payment of wages.
  • Overtime – Most employees must be paid time and one-half their rate of pay when they work more than 40 hours a week, but there are some exceptions.
  • Benefits – Disputes over vacation days, bonuses, breaks, and scheduling.

Our experience working for both employers and employees means we know what sort of arguments are persuasive in these cases, and what evidence is needed to back up our claims. We put that knowledge to use to help our clients quickly resolve their grievances and get on with their lives. 

Experience You Can Trust

If you are considering filing or fighting a wage theft claim, let’s talk. The Heiferman & Associates team of employment lawyers are full of experienced advocates who will aggressively fight to ensure you are not being taken advantage of by someone who is trying to abuse our state’s wage and hour laws. 

We have over 20 years of experience litigating these matters, so you can trust us to quickly and efficiently resolve your case. You can contact us today to get the wheels of justice turning.