Archives for October 2016

Legislator will Try Again to Impose Liability on Companies for Wage Violations by Entities they Contract With

After failing to pass what’s referred to as a wage theft bill in the recently ended legislative session, the bill’s sponsor is not giving up. According to published reports, Sen. Sal DiDomenico will reintroduce the controversial measure when legislators go back into session in January.

The proposal would make employers that contract with third parties to have labor performed or services provided to them guarantors of the payment of wages earned by the employees of those third parties. It appears to make such employers, in effect, co-employers of the third party’s employees. If, then, the third party doesn’t pay its workers, the company that received the benefit of the workers’ services would be liable. The proposal does not make an exception for companies that pay whatever is due under their third-party contracts. The effect could be, it seems, that company A pays for labor provided to it by company B and is nonetheless liable directly to the company B’s employees because it failed to remit wages earned by them. This could mean company A pays the same penalties — triple damages and legal fees — as it would if it failed to pay its own employees for work performed.

The statute is apparently aimed at upending a practice under which large companies hire third parties to be employers of workers who actually perform services for them directly. Whether it will ever becomes law remains to be seen.

Good Faith Interactive Process is Key to Properly Handling Accommodation Issues

Most employers know (though some, incredibly, still do not) that they are obligated by law to reasonably accommodate disabled employees. After that, there are several areas of knowledge breakdown that form a theme for cases in litigation. Among them is a rule that is commonly overlooked: the requirement that employers engage in good faith interactions with disabled employees to find reasonable accommodations that will allow them to perform their jobs. Doing so is critical to effectively preventing or defending against handicap discrimination lawsuits.

After acknowledging an employee’s handicap, a process that is not always as simple as it may seem, employers on notice that an accommodation is needed have the duty to figure out what can be done. Commonly, they treat it as a one way street along which they alone consider potential work changes and decide whether they can be implemented. This approach can work as long a reasonable accommodation is identified, accepted by the employee involved, and implemented. When this  doesn’t happen for one reason or another, employers need to be sure they turn to the employee for and engage in a good faith interaction aimed at exploring accommodation options and finding one that will work. This normally involves a review of medical information, meeting with the employee, considering which job duties are essential, and exploring all reasonable options for helping the employee perform them. Employers should be careful that, while working with employees in this area, they are not counter-acting that effort by disciplining or mistreating them actions that somehow relate to the disability in question.