It is critical to note that, in addition to other key responsibilities and legal obligations, employers are required to take proactive measures and steps to ensure compliance with federal law whenever they hire new employees. Pursuant to the U.S. immigration law, employment verification for every employee must be conducted at the time of hire with the aim of providing authorization that an employee is permitted to work in the United States.
To move this discussion forward, we need to understand the key considerations employers should take when serving letters of offer and agreement during the hiring and onboarding process for new employees.
New York Labor & Employment Law on Drafting Letters of Offer & Agreement During New Employee Hiring & Onboarding
To start with, while employers should routinely use them to codify issues such as restrictive covenants and notice requirements that dictate obligations for employees in the course of or following the separation of employment, letters of offer and agreements help to prevent disputes between employees and employers in matters such as the terms and conditions of employment, code of conduct, and compensation.
Firstly, pursuant to N.Y. Lab. Law § 195 of New York’s Wage Theft Prevention Act, employers in New York should provide new hires with written notice of compensation plans and any other information related to such employee benefit(s). This implies that as part of compliance with the law, such information should be incorporated in letter(s) of offer and agreement.
Secondly, employers should, as a best practice, ensure that letter(s) of offer and agreements include(s) provisions for arbitration in case disputes arise. However, employers should be aware that parties cannot be required, under an agreement, to submit to all employment discrimination claims, which require mandatory arbitration. Except in cases where they do not align with the applicable collective bargaining agreement or do not align with inconsistent with federal law, N.Y. C.P.L.R. § 7515 renders void any clause requiring mandatory arbitration. Employers should be aware that in a past lawsuit, the compulsory arbitration clause ban in New York was ruled, by a federal district court, to have been preempted by the Federal Arbitration Act.
Lastly, employers should, as another good practice, ensure that the letter(s) of offer and agreement specifically indicate, whenever this is the case, that employment is at-will. Most importantly, employers in New York may wish to add a provision choice of law that would be applicable to New York law, especially since disputes between employees and employers are common in the workplace.
In Part XXII of the series, we will, in our blog post titled “New Employee Hiring & Onboarding: Notice & Posting Requirements,” hammer on what employers, particularly new ones, should be cognizant of and consider when it comes to requirements for notice and posting of new hires.
As usual, stay tuned for more legal guidance, training, and education. In the interim, if there are any questions or comments, please let us know at the Contact Us page!
Always rising above the bar,
Isaac T.,
Legal Writer, Author, & Publisher.