Author Archives: Alan Krystal

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About Alan Krystal

Alan Krystal is the President at Alan H. Krystal, P.C. in Nesconset, New York

EMAIL: krystalesq@aol.com

BIO: About Alan

PHONE: 631-780-6555

Anicich vs Home Depot U.S.A., Inc. — Part 2
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Anicich vs Home Depot U.S.A., Inc. — Part 2 | Alan Krystal

{3:30 minutes to read} In Part 1 of this article, we looked at the initial ruling dismissing a complaint brought by the estate of a woman murdered by her supervisor. The plaintiff chose to appeal the decision. Part 2 discusses the results of that appeal.

The Appeal

The court of appeals reiterated the general rule in Illinois tort law, which is that one person has no duty to prevent the criminal acts of another.The court also stated that employers can be liable for hiring and retaining an employee if they knew, or should have known, said employee was unfit for the job by creating a danger of harm to third persons.

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Anicich vs Home Depot U.S.A., Inc. — Part 1
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Anicich vs Home Depot U.S.A., Inc. — Part 1 | Alan Krystal

{4:36 minutes to read} On March 24, 2017, the United States Court of Appeals, Seventh Circuit, in the case of Anicich v. Home Depot U.S.A., Inc., issued a decision that may have a significant impact on employers. The court reversed the dismissal of a complaint brought by the estate of a woman murdered by her supervisor, who had an alleged history of harassment and sexual abuse. The Complaint The plaintiff’s complaint alleged that Home Depot, Inc and two companies that ran its garden center jointly employed Brian Cooper as a supervisor, a man with a known history of sexually harassing, verbally abusing, and physically intimidating his female subordinates.

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Ban the Box
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Ban the Box | Alan Krystal

{4:42 minutes to read} One standard question that often appears on job applications is an inquiry as to whether the applicant has a prior criminal conviction. It’s a question that presents a “no-win” proposition to an applicant with a prior criminal record:

  • An honest response can immediately eliminate the applicant from further consideration.
  • Answering falsely can blow up in the applicant’s face if the employer performs a criminal background check.

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The Importance of Carefully Worded Independent Contractor Agreements
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The Importance of Carefully Worded Independent Contractor Agreements | Alan Krystal

{4:54 minutes to read} In past articles, I have discussed the increasing trend in the courts and government agencies in which the majority of the determinations held that workers classified as independent contractors were, in fact, employees and therefore entitled to minimum wage and all other statutory protections afforded workers. The New York State Court of Appeals was confronted with this issue on appeal of a decision by the Unemployment Insurance Appeal Board which stated that a yoga studio was responsible for unpaid unemployment contributions for certain yoga instructors whom the studio has classified as independent contractors.

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Limiting the Non-Compete Provisions in Employment Agreements
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Limiting the Non-Compete Provisions in Employment Agreements | Alan Krystal

{4:54 minutes to read} In one of my articles last year (Is Your Company Protected from Your Former Employees?) I discussed non-compete provisions in employment agreements. I stated that such provisions are generally prohibited in California, and in other states are subject to interpretation on a case-by-case basis. Since then, many states have sought to introduce legislation. New York State Attorney General Eric Schneiderman has proposed a bill that seeks to do the following:[1]

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The Department of Labor’s Overtime Rule
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The Department of Labor’s Overtime Rule | Alan Krystal

{3:06 minutes to read} In my November article, Update on Overtime Rules, I had mentioned that a federal court judge in Texas had issued a nationwide injunction blocking the Department of Labor’s rule requiring overtime pay for more than 4 million new workers, which was to have taken effect on December 1, 2016. This ruling arose out of a lawsuit filed in the U.S. District Court, Eastern District of Texas challenging the overtime rule, arguing that the Department of Labor exceeded its statutory authority in issuing the regulation.

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Update on Overtime Rules
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Update on Overtime Rules | Alan Krystal

{2:30 minutes to read} In a recent two-part article, I discussed the upcoming changes that will go into effect December 1, 2016, with respect to overtime eligibility and exemptions and the significance of those changes. In recent weeks, there have been two events—one at the courthouse, the other at the ballot box—that could potentially have a major effect on these changes. On September 20, 2016, the U.S. Chamber of Commerce, along with more than 50 business groups, filed a lawsuit in the US District Court, Eastern District of Texas challenging the overtime rule.

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Salaried or Hourly? Part 2
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Salaried or Hourly? Part 2 | Alan Krystal

{3:00 minutes to read} In Part 1 on how to designate whether an employee is salaried or hourly, I discussed the upcoming changes that will go into effect December 1, 2016, and the significance of those changes. I also began listing the five stated exemptions into which an employee must fall in order to be considered exempt. This article covers the 4th and 5th exemptions listed in the new rule. 4. Sales exemption •The employee must have the primary duty to make and be making sales or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer.

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Salaried or Hourly? Part 1
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Salaried or Hourly? Part 1 | Alan Krystal

{3:36 minutes to read} One of the most challenging decisions facing any employer is whether to designate an employee as salaried or hourly. Many employers are under the impression that if they provide an employee with a supervisory title and give them a smartphone or a laptop, that employee is off the clock. As such, the employer is not required to pay overtime to that employee. That supposition is incorrect. In order to be designated as exempt from overtime, there are several tests that an employer must satisfy to prove that exemption.

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NFL Football: The Pain Behind the Pom-Poms
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NFL Football: The Pain Behind the Pom-Poms | Alan Krystal

{3:36 minutes to read} As another NFL season begins, the attention of the fans turns to the excitement of the game and the overall football experience. Part of that NFL experience is the team cheerleaders. On the surface, being a cheerleader would appear to be a glamorous job. But to paraphrase the late Freddie Mercury, it’s often not a bed of roses nor a pleasure cruise. The reality of the situation is that many NFL cheerleaders face the same wage and hour challenges that workers in less glamorous jobs face. 

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Fox vs Ailes: How Would Your Employment Agreement Stand Up?
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Fox vs Ailes: How Would Your Employment Agreement Stand Up? | Alan Krystal

{3:30 minutes to read} In one of the more high-profile, recent harassment claims, former Fox News Network anchor Gretchen Carlson filed a complaint in Bergen County Superior Court in New Jersey against former FOX news CEO, Roger Ailes, alleging that her employment was adversely affected and ultimately terminated because she had rebuffed Ailes’ sexual advances. Although Carlson was terminated by Fox News, she did not sue Fox News Network but instead named Ailes as the sole defendant.

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Real Estate Agents as Independent Contractors – Part 1
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Real Estate Agents as Independent Contractors – Part 1 | Saul Bienenfeld

{3:06 minutes to read} Real estate agents have generally been classified as independent contractors by brokers, but agents, unlike independent contractors in other industries, are subject to supervision by the brokers. This level of supervision is mandated by state statutes that require brokers to exercise reasonable supervision over the activities of his or her salespersons. The statutes also require the establishment of policies, rules, procedures and systems to review, oversee, inspect and manage such areas as document management and retention, the handling of trust funds, and reports of salesperson activity.

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Do You Have EPLI Coverage?
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Do You Have EPLI Coverage? | Alan Krystal

{3:00 minutes to read} It’s a letter that no employer wants to receive—that letter from a lawyer retained by a recently discharged employee, alleging that the employer’s termination was the result of a discriminatory practice—threatening immediate legal action if the employer does not financially resolve the matter to the employee’s (and attorney’s) satisfaction. ven if an employer believes the ex-employees claim to have no merit, that letter nonetheless creates a stressful situation, especially if the employer is not covered byEmployment Practices Liability Insurance (EPLI).

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The Truth About Public Sector Employers and Interns
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The Truth About Public Sector Employers and Interns | Alan Krystal

{2:30 minutes to read} Following the publication of my last blog post, “The Truth About Interns,” I received an inquiry about whether public sector employers had similar obligations. Under the Fair Labor Standards Act, there are exceptions under certain circumstances for individuals who volunteer to perform services for a state or local government agency, and for individuals who volunteer for humanitarian purposes for private non-profit food banks. These types of internships “where the intern volunteers without expectation of compensation, are generally permissible.”[1]

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The Truth About Interns
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The Truth About Interns | Alan Krystal

{4:36 minutes to read} There are times when an employer may seek to hire an intern without compensation. On the surface, it would appear to be a mutually beneficial quid pro quo arrangement which allows an employer to hire a student to work for free and provides a student with working experience in a field related to that student’s desired career path. However, as mutually attractive as such arrangements may appear to be, this type of arrangement can cause significant problems for an employer who enters into it blindly.

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Accommodating Employees with Disabilities
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Accommodating Employees with Disabilities | Alan Krystal

{5:48 minutes to read} What happens if an employer has an employee or an applicant for a position who advises that they have a disability and will require special accommodations to perform their job? That scenario creates a challenge in which the employer must balance the fairness to the employee and/or applicant against the cost of satisfying the accommodation and, of course, being compliant with the law.

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The Employment Application — What Can and Cannot Be Required
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The Employment Application — What Can and Cannot Be Required | Alan Krystal

{2:54 minutes to read} One of the greatest legal pitfalls facing employees can start at square 1 — the employment application. It is improper for an employment application to include any of the following inquiries:

  • Date of birth
  • Graduation date  (indirect way of revealing age)
  • Whether employee is a US citizen (may ask if an applicant is legally eligible to work in the United States)
  • Race, gender or national origin
  • Marital status
  • Social Security number
  • Disabilities and medical conditions
  • Height and weight

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Terminating an Employee
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Terminating an Employee | Alan Krystal

{4:24 minutes to read} While employers generally aspire to achieve a harmonious and long-term association with their employees, there will be times when employers will be forced to terminate an employee. When that happens, the affected employee will generally be upset and may be motivated to litigate if they believe that they were unfairly terminated. In the absence of an employment contract, employment is “at will.”

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Are Your Employees Misusing Sensitive Employee Information?
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Are Your Employees Misusing Sensitive Employee Information? | Alan Krystal

{2:12 minutes to read} Many employees are privy to sensitive information such as Social Security numbers which, if used for improper purposes, can cause significant damage to third parties. Such actions can also subject companies to significant liability for employing individuals who misuse this type of information. One effective method to minimize liability is to perform background checks on prospective employees as to their prior criminal record.

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The Company Handbook
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The Company Handbook | Alan Krystal

{2:54 minutes to read} To some employers, a handbook serves the primary purpose of informing employees of their

  • benefits,
  • days off,
  • work standards,
  • dress code, and
  • company rules.
However, a comprehensive and well-crafted handbook can be of critical importance in protecting an employer in the event of litigation. Handbooks are not just for large companies; companies of all sizes should have a company handbook. The handbook should make it clear that:

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Restaurant Wages & Hours – Part 2
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Restaurant Wages & Hours – Part 2 | Alan Krystal

{3:00 minutes to read} It is critical that restaurants make sure that owners (or managers with significant supervisory authority) do not participate in tip pooling and tip sharing arrangements. There have been significant penalties assessed against establishments that have run afoul of this rule. An East Coast restaurant chain was fined by the Department of Labor for employers illegally retained a portion of employee tips and for failing to properly pay minimum wage, overtime, and other required income. They paid a settlement of $6.8 million to over 1,100 employees.

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Are You Having Restaurant Wage and Hour Problems?
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Are You Having Restaurant Wage and Hour Problems? | Alan Krystal

{2:03 minutes to read} A key issue facing restaurant owners is avoiding wage and hour problems, especially when it comes to tips. A tip is defined as a voluntary payment from a customer in which he or she has the unrestricted right to determine the amount, and who receives payment. A tipped employee is one who is primarily engaged in the serving of food or beverages.

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Social Media in the Workplace
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Social Media in the Workplace | Alan Krystal

{2:24 minutes to read} With social media now an integral part of many people’s everyday life, employers are concerned about how their employees use social media and what they might be saying about the company. While an employer’s desire to protect themselves against dissemination of negative information is a legitimate concern, Section 7 of the National Labor Relations Act gives employees the right to engage in concerted (2 or more people) activities for mutual aid and protection. Protected activity includes comments about:

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Is Your Company Protected from Your Former Employees?
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Is Your Company Protected from Your Former Employees? | Alan Krystal

{2:24 minutes to read} While a loyal employee can be a valuable asset to a company, a former employee, especially one who departs on unpleasant terms, can be a significant threat. If that employee is in a position of responsibility, they will be privy to trade secrets and financial, customer, and marketing information that can be detrimental to a business if not properly safeguarded.

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Are All Your Workers Legal?
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Are All Your Workers Legal? | Alan Krystal

{3:53 minutes to read} With the subject of what to do with illegal immigrants being a hot topic of debate in the 2016 presidential campaign, it should be noted that there is no debate as to the state of the law; any business that hires a worker not legally authorized to work in the United States faces significant civil and, in some cases, criminal liability. Under the Immigration Reform and Control Act (IRCA), a company that knowingly uses illegal workers can be fined as much as $10,000 per worker.

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Conflict of Interest
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Conflict of Interest | Alan Krystal

{1:55 minutes to read} A conflict of interest situation can arise when an employee takes an action or has an interest outside of their employment that may impede their ability to perform their work effectively, or in a manner inconsistent with their duty of loyalty to the company. A conflict of interest occurs when an employee engages in activities or holds other jobs that are in conflict with the interests of the employer:

  • Competing with the employer;
  • Being a director or consultant for any competitor of the company; and
  • Working for an outside supplier or another customer.

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Independent Contractor Rules – Part 2
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Independent Contractor Rules – Part 2 | Alan Krystal

{3:54 minutes to read} In my previous blog, I outlined the reasoning behind the scrutiny of independent contractor vs. employee. In this part, I will cover some additional strategies for addressing this situation. Looking Beyond the Agreement You have to look beyond the agreement because the agreement is not going to be dispositive:

  • What is the nature of the relationship?
  • Where is this person going to be doing work?
  • Who sets the hours? Is the contractor free to set the hours?

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