Employer Issues

If you own a business in New York that employs more than 4 people, you need to be aware of many state and municipal employment laws. If you own a business or are in management at a business in New York that employs 15 or more people, you need to be aware of additional, federal employment laws. All of these laws impose responsibilities and duties on you as an employer requiring you to avoid discrimination and workplace harassment, whether intentional or not. In addition, all employers are required to adhere to fair labor standards and maintain a safe work environment. The responsibilities and duties are in addition to the obligations you have to your employees based on the employment agreements you enter into with them.

How do I know what employment laws apply to my business?

You should consult with a lawyer for specifics about your business. Generally speaking, there are five broad categories of employment laws that will commonly impact your business:

  • Contract Law: Many of your rights and responsibilities are controlled by the type of contractual relationship you enter with your employees.
    • Other than certain executives and professionals who have written contracts, most of your employees are employed “at will.” That means you can fire them at any time for any reason or for no reason, so long as that reason is not prohibited by federal, state or municipal law. At will employees may resign at any time. If you enter into a written agreement (employment contract) that spells out the terms (salary, length of employment, responsibilities, reasons for termination) of an individual’s employment, that employee is not an at will employee. Your duties and responsibilities will be spelled out in the contract. You may not fire this type of employee at any time for any reason without incurring possible liability under contract law.
    • If your employees are members of a union, the union agreement will spell out many of the rights and responsibilities of you and your employees, such as those regarding hours, wages, benefits, and advancement, so long as that agreement does not violate federal or state employment law.
  • Discrimination Laws: Both the federal government and New York State (as well as New York City), maintain specific laws prohibiting discrimination in the workplace on the basis of race, ethnicity, national origin, religion, gender, disability, pregnancy and age. New York City’s laws in this area extend to sexual orientation and gender identity. The prohibition against discrimination extends to your decision to hire, fire, promote, offer fringe benefits, layoff, compensate, training, assign jobs or any other condition of employment. For example:
    • If you are considering two candidates for a job who are equally qualified on the basis of skill and experience, you may not choose to hire one over the other based on a prohibited category. This also applies to decisions on other conditions of employment. If age or lack of particular disability is a genuine qualification for a particular position, you may be able to distinguish between applicants and employees on those bases.
    • You may not engage in or tolerate offensive behavior based on the prohibited categories by employees or your agents, when that behavior makes other employees uncomfortable or unable to work effectively. This is called harassment and can result in an unlawful hostile work environment.
    • You must make reasonable accommodations for employees’ disabilities, including pregnancy.
    • You are responsible for the actions of your employees and agents who discriminate against or harass other employees if you are aware of the discrimination and fail to correct the problem.
  • Fair Labor Standards Act (FLSA): The FLSA sets minimum wage, overtime pay, recordkeeping, and youth employment standards for employees in the private sector and in federal, state, and local governments. Many employees, such as executives, professionals and accountants, as well as others, are “exempt” from various FLSA requirements. All other employees are called “non-exempt,” and the wage, overtime and recordkeeping requirements apply to them. You may not classify as exempt an employee who is, by definition, non-exempt, in order to avoid the requirements of the FLSA. Employees who earn more than $30 per month in tips are subject to a different FLSA minimum wage structure, but they are still guaranteed to receive the same amount, after considering the tips they receive. Under the FLSA, you may not hire someone under the age of 14, and the number of hours employees under the age of 16 may work is limited.
  • Family and Medical Leave Act (FMLA): If you employ 50 or more people, your business is covered by FMLA, which requires that you allow employees who have worked for you for at least 12 months and who have worked 1250 hours during the preceding 12 month period to take an unpaid leave of absence of up to 12 weeks (within a 12-month period) to attend to family and medical responsibilities, which can include births, illnesses, or other serious health conditions of the employee or a family member. During the employees’ absence, you must maintain their health coverage and you may not terminate them. When they return, they are entitled to their old job, or if it is not open, you must offer them reasonably comparable work.
  • Occupational Safety and Health Act (OSH Act): Federal law requires that an employer furnish a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” You are required to comply with all occupational safety and health rules and regulations under the OSH Act.

I think I may have an employment law problem:

  • Act quickly—if you receive a complaint from an employee that involves employment or anti-discrimination laws or your business is being sued by an employee, failure to act quickly can result in substantial liability.
  • Gather relevant documents concerning the alleged problem, including your employee manual, if published.
  • Get in touch with an experienced employment lawyer.

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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