Understanding Pay Reductions and Furloughs
Client Question
We opened the clinic, but have fewer patients than anticipated. The management board wants to send employees on unpaid leave and require them to be available to return with 24 hours’ notice. Is this allowed?
– Client of Andrieux Law, PLLC
Attorney Response
An employer cannot force unpaid leave and require employees to return on demand. However, reductions in pay or work hours, negotiating voluntary unpaid leave, and temporary furloughs are permitted (subject to applicable notice requirements). Any such changes should be made across the entire clinic, based on legitimate business needs, as making pay or hour reductions for only some individuals creates the risk of discrimination and other legal claims.
New York is an “at-will” state, meaning that either party can terminate the employment relationship for any reason, as long as it is not illegal. Therefore, asking employees to perform the same amount of work for less money can create morale problems or cause employees to simply quit. One way to deal with this is to increase the number of paid vacation days or holidays, but remember that increasing the number of vacation days may also increase the number of accrued, unpaid vacation days owed to any departing employee. Where there’s an employment agreement in place, a reduction in pay may constitute a material change in the terms of the agreement and create grounds for termination by the employee, or worse, a breach of contract claim.
Pay reductions are subject to minimum wage restrictions for hourly employees (“Nonexempt Employees”) covered by the Fair Labor Standards Act (“FLSA”) and minimum salary restrictions for salaried employees exempt from the FLSA (“Exempt Employees”)—e.g., professional or executive staff. As long as you continue to pay Nonexempt Employees the minimum hourly wage when they do work, you generally may reduce their hours at your discretion, including by means of furlough or layoff. However, reducing the salaries and hours of Exempt Employees is more complicated because under the FLSA, an Exempt Employee’s salary is not subject to reduction, i.e., an Exempt Employee must receive the same amount of compensation regardless of the amount of hours they work. Therefore, if an Exempt Employee performs any work—no matter how little—during the workweek, their full salary must be paid.
Exempt Employees can be furloughed without pay in week-long increments (for example, one week per month for the next 4 months) without violating New York labor laws. As long the employee performs no work for an entire week, there is no legal obligation to pay the employee for that week. During the furlough period, however, the performance of even a minimum amount of work, such as checking emails or receiving phone calls, could require payment of the employee’s full weekly salary. For this reason, it is critical to ensure that furloughed employees are not performing any work during the furlough period. At a minimum, employees should sign a statement that they will not perform any work while on furlough. You should also consider disabling any furloughed employees’ email access or taking possession of laptops and mobile phones provided by the company.
Note: Consider applying for the New York State Shared Work Program (https://dol.ny.gov/shared-work-program-0), which provides for partial unemployment insurance for full-time employees whose weekly hours have been reduced by 20% to 60%. Regular unemployment benefits may be available to employees whose hours have been reduced by less than 20% or more than 60%, and to employees who have been furloughed (for the period of furlough) or laid off. A furlough that lasts more than 6 months is generally considered a permanent layoff.
Questions or comments? Please contact us at (646) 213-9044 or Admin@AndrieuxLaw.com.
Question
Under the New York Worker Adjustment and Retraining Notification (WARN) Act, if you employ 50 or more individuals, 90 days’ written notice is required if at least 25 employees will experience certain types of employment losses, including more than a 50% reduction in hours per month for a 6-month period or a furlough/layoff lasting more than 6 months. Notice must also be given to the affected employees and/or their representatives, the New York Department of Labor, and the Local Workforce Investment Board. Failing to comply with the WARN Act can result in liability for back wages and lost benefits, as well as civil penalties. The WARN Act does not apply if the reduction in hours or furlough/layoff is carried out as part of a Shared Work Program through the NY Department of Labor, in which the employees receive unemployment benefits to partially compensate for their reduced wages. However, the WARN Act will apply if the wage reductions or furloughs/layoffs persist after the Shared Work Program ends. There is also a limited exception to the 90-day notice requirement for unforeseeable business circumstances. An unforeseeable circumstance must not have been reasonably foreseeable when the 90-day notice would have been required (for example, if the clinic’s major funding source collapses suddenly and without warning). Even in these situations, employers are still required to provide as much notice as practicable. For our out-of-state readers, the Federal WARN Act which applies to employers with 100 or more employees and requires 60 days’ written notice. Questions or comments? Please contact us at (646) 213-9044 or Admin@AndrieuxLaw.com .
Closing costs paid by the buyer In addition to the purchase price of the property, buyers should be prepared to pay certain out-of-pocket expenses at or prior to the closing. The most typical of these include: Attorneys’ fees: Charged by your real estate attorney to prepare and review the contract of sale and perform title clearance activities. Courier fee: Paid to the title closer for the transportation of paper documents. Property inspection: Even if an inspection isn’t required, it’s wise to get one to help uncover any issues with the property before you buy it. Property insurance: Protects against physical damage to your property and personal belongings due to fire, wind, and other perils; and other risks that occur after you purchase the property, such as theft or injury to a third party. Property taxes: If the seller has paid property taxes for a period beyond the closing date, you can expect to reimburse the seller your pro rata share of such payment. Recording fee: Charged by the county for recording public land records, such as deeds and mortgages. Survey fee: Charged by a surveying company to confirm a property’s boundaries. Title insurance: Protects against financial losses arising from issues with the property’s title, such as liens (e.g., unpaid taxes, mortgages), encroachments (e.g., a neighbor’s fence on your property), title defects (e.g., errors in public records). title fraud, and other ownership disputes that existed before you bought the property. Title searches: The buyer is responsible for hiring a title company to search property records to ensure there aren’t any known issues with the property’s title, such as judgment or tax liens. Closing costs paid by the seller Although buyers bear the bulk of closing costs, sellers don’t get off scot-free. As a seller, you’ll typically pay your own attorneys’ fees; your pro rata share of property taxes if, as of the closing date, you haven’t paid the taxes for the current period; and a transfer tax imposed by the state to transfer title to the buyer. Questions or comments? Please contact us at (646) 213-9044 or Admin@AndrieuxLaw.com .
During a HIPAA audit, the Office for Civil Rights (OCR) examines an organization’s compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), focusing on policies, procedures, and practices related to protecting patient information, including administrative, physical, and technical safeguards. The following is an overview of what the OCR looks for in a HIPAA audit: Policies and Procedures. Review of written policies related to HIPAA, including Privacy, Security, and Breach Notification Rules. Administrative Safeguards. Assessment of data access management, employee training on HIPAA, and security policy implementation. Physical Safeguards. Evaluation of physical security for protecting both electronic and paper health information. Technical Safeguards. Review of technologies used to protect electronic health information (ePHI), such as encryption and access controls. Training. Confirmation that staff are properly trained on HIPAA regulations and the organization’s policies. Breach Notification Procedures. Examination of processes for detecting, investigating, and reporting HIPAA breaches. Audit Trails. Checking if audit trails are maintained to monitor access to ePHI. Risk Analysis. Assessment to ensure a thorough risk analysis is done to find and reduce vulnerabilities. Compliance with Specific Requirements. The OCR may focus on specific requirements of the Privacy, Security, or Breach Notification Rules, or may examine a broader scope of requirements. HIPAA violations can result in both civil and criminal penalties, including fines ranging from $141 to over $2 million, and even potential imprisonment for intentional violations. Avoid these excessive consequences of non-compliance: It all starts with your HIPAA policies and procedures, which will guide your practice in tackling the issues listed above to become (and stay) HIPAA compliant. Questions or concerns about your HIPAA compliance practices? Please contact us at (646) 213-9044 or Admin@AndrieuxLaw.com .
Beneficial ownership information (“BOI”) reporting under the Corporate Transparency Act has been reinstated after the nationwide injunction in the Smith case was stayed on February 17, 2025. For most reporting companies, the new deadline to file a BOI report is now March 21, 2025. The U.S. Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”) is evaluating potential exemptions for so-called “low-risk entities” and assessing options to further modify deadlines (while prioritizing reporting for entities that pose the most significant risks to national security). However, FinCEN has not yet provided any details or additional guidance. Although the House of Representatives has passed a bipartisan bill to extend the deadline to January 1, 2026, the Senate has yet to act. So, there is no guarantee that this extension will become law. Accordingly, businesses should not rely on court rulings or pending legislation for relief. If the deadline holds, last-minute filers may face system overloads and risk penalties for late filings or non-compliance. Questions or comments? Please contact us at (646) 213-9044 or Admin@AndrieuxLaw.com .
In December, the U.S Department of Health and Human Services Office of Civil Rights (“OCR”) imposed a civil penalty of $548,265 against a healthcare facility (the “Facility”) in Colorado for a series of HIPAA violations. The first violation stemmed from a data breach in 2017 resulting from a phishing attack that compromised an employee’s email account. OCR’s investigation revealed that the breach occurred because the 2-factor authentication (“2FA”) feature on the employee’s email account had been disabled by the IT department and was not reactivated. While 2FA is not explicitly required by HIPAA (it is, however, recommended to add an extra layer of security by requiring multiple login credentials to access data), it was the method of security chosen by the Facility and was not properly enabled at the time of the attack. According to OCR, the second breach occurred in 2020 because two employees granted unknown third parties access to their email accounts by accepting 2FA access requests that neither employee initiated. OCR also determined that the Facility violated HIPAA by failing to train nursing students on clinical rotation who had access to PHI, as well as failing to complete a risk analysis to determine the risks and vulnerabilities to ePHI in the organization’s information technology systems. Among other things, risk analyses are intended to discover and address precisely these types of issues, i.e., whether 2FA (or any other security tools) are disabled or otherwise not functioning as they should, or whether employees are properly safeguarding access to data. The Facility is now liable for over half-a-million dollars for failing to implement HIPAA-mandated policies and procedures, which are designed to prevent incidents like these. Simply having appropriate HIPAA documentation and training programs in place could have saved the Facility from much, if not all, of the liability here, even if the breaches nevertheless occurred. After all, accidents do happen. But if they happen because you weren’t prepared, that’s when you face a fortune in fines from the OCR. Questions or concerns about your HIPAA compliance practices? Please contact us at (646) 213-9044 or Admin@AndrieuxLaw.com .
Earlier this week, we reported that the Supreme Court of the United States (“SCOTUS”) granted the Department of Justice’s (“DOJ”) December 31, 2024 petition to stay the nationwide injunction blocking enforcement of the CTA and its beneficial ownership information reporting (“BOIR”) requirement. That injunction was originally issued by the U.S. District Court for the Northern District of Texas in the case, Texas Top Cop Shop, Inc. v. Garland. The stay would have reinstated the BOIR requirement. However, on January 7, 2025, a different district court in Texas enjoined the reporting requirement in the case, Smith v. United States Department of the Treasury. That injunction, issued in the Eastern District of Texas, also applies nationwide and the DOJ has not appealed it as of yet. What’s this mean for the CTA and the BOIR requirement? The Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”), which is responsible for implementing the BOIR requirement, has confirmed that despite the SCOTUS ruling staying the nationwide injunction issued in Texas Top Cop Shop, Inc., the nationwide injunction in Smith remains very much in effect. Thus, the reporting requirement is merely VOLUNTARY once again. As always, we will continue to track the CTA saga and keep our readers up-to-date with any new developments. Nevertheless, given the mayhem surrounding BOIR and the potential for deadlines to resume quickly, we strongly recommend voluntary filing. Questions or comments? Please contact us at (646) 213-9044 or Admin@AndrieuxLaw.com .
Today, the U.S. Supreme Court ordered a stay of the nationwide injunction preventing enforcement of the Corporate Transparency Act and its requirement for businesses to report their beneficial ownership information to the Financial Crimes Enforcement Network (“FinCEN”). Though the reporting requirement has been reinstated, FinCEN has not yet provided any instructions or deadlines for the resumption. We will continue to monitor the situation and keep you informed. In any event, given the uncertainty of the filing deadline, we recommend that companies file their beneficial ownership information reports as soon as possible to avoid the harsh penalties for non-compliance. Penalties include civil fines of up to $591 per day, and (in the worst cases) criminal penalties of up to 2 years imprisonment and a fine of up to $10,000. Questions or comments? Please contact us at (646) 213-9044 or Admin@AndrieuxLaw.com .
Around and around we go! On December 26, 2024, the Supreme Court of the United States (“SCOTUS”) lifted the emergency stay of the nationwide injunction granted by the Fifth Circuit just 3 days earlier. In the latest installment of the CTA saga, the Department of Justice (“DOJ”) filed a petition on New Years’ Eve to once again reinstate the stay. Plaintiff’s response to the DOJ’s petition is due January 10, 2025, with the Court’s decision expected shortly thereafter. In the meantime, the preliminary injunction remains in effect and reporting companies will not face liability for failing to file beneficial ownership information (“BOI”) reports, though they may continue to do so voluntarily. If SCOTUS grants the DOJ’s request to reinstate the stay, the BOI reporting requirement could be reinstated immediately. The most recent deadline was set for January 13, 2025, but this is likely to be extended. As we anxiously await SCOTUS’s decision, we suggest you continue gathering the information necessary to prepare your BOI reports in case the filing requirement resumes. We will continue to monitor the situation and keep you apprised of new developments. Questions or comments? Please contact us at (646) 213-9044 or Admin@AndrieuxLaw.com .
In what has been a hectic month for the CTA and its upcoming filing deadline, we now have another dramatic turn of events in the 11th hour. This is less than ideal considering the CTA requires nearly every business in the U.S. to submit beneficial ownership information for the first time. On Monday, the U.S. Court of Appeals for the Fifth Circuit granted the government’s emergency motion to stay the nationwide preliminary injunction on enforcement of the CTA, finding that the government is likely to prevail in its argument that the CTA is constitutional. The injunction, which was issued on December 3, 2024 in the U.S District Court for the Eastern District of Texas, halted the mandatory filing of beneficial ownership information by businesses created or registered in the U.S. Following Monday’s decision, the filing requirement has been reinstated pending the outcome of the government’s appeal of the injunction. However, in light of the period the injunction was in effect, the government has extended the filing deadline for reporting companies as follows: Companies created or registered prior to January 1, 2024: January 13, 2025. Companies created or registered from January 1, 2024 through September 3, 2024: Within 90 days of creation or registration. Companies created or registered from September 4, 2024 through September 24, 2024: January 13, 2025. Companies created or registered from September 25, 2024 through December 2, 2024: Within 90 days of creation or registration. Companies created or registered from December 3, 2024 through December 23, 2024: Additional 21 days from original filing deadline. Companies created or registered from December 24, 2024 through December 31, 2024: Within 90 days of creation or registration. Companies created or registered on or after January 1, 2025: Within 30 days of creation or registration. The Fifth Circuit has also ordered an expedited review of the government’s appeal, now awaiting the next available panel to hear the parties’ oral arguments. As for the future of the CTA, the appeal will merely determine whether the law may be enjoined until final resolution of the underlying case. The judgment in that case will decide the true fate of the CTA: Should the plaintiffs prevail, enforcement of the CTA will likely be permanently enjoined, leaving it to the government to rework its provisions or abandon it altogether. In the meantime, be sure to submit your beneficial ownership information reports on time to avoid significant penalties for non-compliance. Questions or comments? Please contact us at (646) 213-9044 or Admin@AndrieuxLaw.com .
