Strategic HR Lawyer

Governor Spitzer's first year in office has been filled with legislative changes in the employment arena.  In addition to my previous posts on:

New Requirements for Written Agreements for Sales Professionals
Rights for New Nursing Mothers to Express Breast Milk in the Workplace, and
New York Workers' Compensation Reform

...there has been a slew of other legislative changes that you should be aware of:

• Mandatory Time Off for Donating Blood – Section 202-j of the NYS Labor Law has been amended to require time off of three hours in a twelve month period for donating blood. The law applies to employs with 20 or more employees and went into effect December 13, 2007.

• The Social Security Number Protection Law went into effect January 1, 2008 to govern how employers record and display employee social security numbers (SSN's). The law not only restricts the use of the SSN but also any number which is derived from the SSN. It prohibits:
  • Communicating the SSN to the general public
  • Displaying the SSN on an ID card
  • Requiring that the employee transmit the SSN over an unencrypted connection
  • Sending the SSN to the employee through the mail unless required to do so by law.

• The Human Rights Law was amended, effective, November 1, 2007, to prohibit adverse action against those who have been subject to a Youthful Offender Adjudication or for a conviction that has been sealed under the Criminal Procedure Law. The does not affect employer rights with respect to job-related convictions and pending arrests.

• Section 190(7) of the NYS Labor Law has been amended, effective January 14, 2008 with regard to the exclusion of certain bona fide executive, administrative or professional employees who are exempt from certain wage payment laws. Previously the threshold weekly salary was $600 per week. On January 14, the salary goes up to $900/week.

• Lastly, there are new civil penalties, upwards of $3,000 per violation, for violations of state rest and meal period requirements.

Posted By Diane Pfadenhauer In New York Law | Permalink

Section 191 of the New York State Labor Law was recently amended.  The actual text of the new law (which I have set out in bulleted form) is as follows:

• "THE AGREED TERMS OF EMPLOYMENT SHALL BE REDUCED TO WRITING, SIGNED BY BOTH THE EMPLOYER AND THE COMMISSION SALESPERSON, KEPT ON FILE BY THE EMPLOYER FOR A PERIOD NOT LESS THAN THREE YEARS AND MADE AVAILABLE TO THE COMMISSIONER UPON REQUEST.

• SUCH WRITING SHALL INCLUDE A DESCRIPTION OF HOW WAGES, SALARY, DRAWING ACCOUNT, COMMISSIONS AND ALL OTHER MONIES EARNED AND PAYABLE SHALL BE CALCULATED.

• WHERE THE WRITING PROVIDES FOR A RECOVERABLE DRAW, THE FREQUENCY OF RECONCILIATION SHALL BE INCLUDED.

• SUCH WRITING SHALL ALSO PROVIDE DETAILS PERTINENT TO PAYMENT OF WAGES, SALARY, DRAWING ACCOUNT, COMMISSIONS AND ALL OTHER MONIES EARNED AND PAYABLE IN THE CASE OF TERMINATION OF EMPLOYMENT BY EITHER PARTY.

• THE FAILURE OF AN EMPLOYER TO PRODUCE SUCH WRITTEN TERMS OF EMPLOYMENT, UPON REQUEST OF THE COMMISSIONER, SHALL GIVE RISE TO A PRESUMPTION THAT THE TERMS OF EMPLOYMENT THAT THE COMMISSIONED SALESPERSON HAS PRESENTED ARE THE AGREED TERMS OF EMPLOYMENT."

Lots of folks are hoping to make a few dollars writing contracts for employers by scaring them with this new amendment.  I suspect that most reasonably intelligent human resources professionals can figure this one out.

Posted By Diane Pfadenhauer In New York Law | Permalink

New York's Governor Spitzer recently created a task force to address the incorrect classification by employers of individuals as independent contractors rather than correctly as employees.  The Executive Order immediately cites the attempt by employers to circumvent their obligations as employers and the adverse effects on the economy of the state as a result.  It furthers notes:

• up to 10% of workers were misclassified in audits between 2002 and 2005.
• enforcement can be achieved through inter-agency cooperation, information sharing, and joint enforcement/prosecution

The Task Force is further charged with, among other things, encouraging complaints through a reporting hotline.  While I don't think that employers should be circumventing the law, I can tell you that there are a whole slew of people out there that would rather have employers consider them independent contracts instead of employees so that they don't have taxes withheld.  Hopefully some of the communication efforts of the Task Force will be directed to individuals who are trying to circumvent the law as well.

Follow this link to Governor Spitzer's Executive Order Establishing the Joint Enforcement Task Force on Employment Misclassification.

Posted By Diane Pfadenhauer In Employment Law , New York Law | Permalink

Last week Governor Spitzer signed new legislation that protects nursing mothers in the workplace.  The law, which goes into effect immediately, "requires employers to provide uncompensated time, and make a reasonable effort to provide private space for women to express milk or nurse their children for a period of up to three years following the birth of a child. In addition, it also bars an employer from discriminating against an employee exercising this right."

Posted By Diane Pfadenhauer In Employment Law , New York Law | Permalink

Governor Eliot Spitzer recently sign into law significant changes in New York's Workers' Compensation Law.    Some of the changes will:

• Reduce employer costs for workers' comp 10 to 15 percent, an estimated annual savings of nearly $1 billion.
• Raise the maximum weekly benefit for injured workers from $400 to $500 immediately year, $550 next year, $600 the year after that and then to two-thirds of the average weekly wage in New York. After that, benefit levels will go up at the rate of inflation.
• Limit the length of time that a partially disabled worker can receive benefits, now unlimited, to between four years and 10 years.
• Raise the minimum weekly benefit from $40 to $100.
• Provide more help to injured workers to help them get back to work and more help for people classified as more than 80 percent disabled.
• Increase penalties and sanctions on businesses and employees who try to defraud the system.

New York has one of the most expensive workers' compensation systems in the county.  Let's hope this works.  For more commentary on this see:

The New Yorkers' Compensation Alliance
Joe Paduda's post on Managed Care Matters

Posted By Diane Pfadenhauer In New York Law | Permalink

This new law, effective March 7, 2007, requires that public sector employers in New York State:

"perform a workplace evaluation or risk evaluation at each worksite and to develop and implement programs to prevent and minimize workplace violence caused by assaults and homicides. The Law is designed to ensure that the risk of workplace assaults and homicides are regularly evaluated by public employers and that workplace violence protection programs are implemented to prevent and minimize the hazard to public employees."

Scenarios designated as high risk include:

• Duties that involve the exchange of money
• Delivery of passengers, goods, or services
• Duties that involve mobile workplace assignments
• Working with unstable or volatile persons in health care, social service or criminal justice
  settings
• Working alone or in small numbers
• Working late at night or during early morning hours
• Working in high-crime areas
• Duties that involve guarding valuable property or possessions
• Working in community-based settings
  

Generally, the new law requires public employers to:

• perform a risk evaluation of their workplace to determine the presence of factors or situations that might place employees at risk from occupational assaults and homicides
• prepare a workplace violence prevention program
• inform and train employees on the requirements of the Law and the workplace risk factors that were identified
• public employers with a combined total of 20 or more full-time permanent employees must develop and implement a written workplace violence prevention program and provide employee training on workplace violence prevention measures and other information contained within the employers written program.  Employee workplace violence training must be provided at the time of job assignment and annually thereafter. The written workplace violence prevention program should be pro-active, capable of assessing potential threats before they occur, and capable of responding to actual incidents immediately.

The risk evaluation should include:

• An examination of the history of past incidents to identify patterns or trends which occurred in the workplace
• A review of occupational injury and illness logs (SH 900) and incident reports to identify injuries that my have resulted from workplace violence incidents
• Surveying employees regarding details associated with the occurrence of workplace violence incidents
• Conducting physical workplace security building surveys

Training topics should include:

•  What is Workplace Violence
• Managements’ commitment to Zero Tolerance of Workplace Violence
• Techniques on how to recognize and avoid Workplace Violence situations
• What are the high risk occupations
• How to report a Workplace Violence incident
• The importance of reporting all incidents
• How and when incidents will be investigated by the employer
• Where employees can go for assistance

So why should private sector employees care about this?

• We've posted many times on this site about the instances of workplace violence that appear in the news and also have posted several times on the availability of resources to assist companies in preventing workplace violence.
  
• These requirements are the minimum standards that any prudent employer should have in place whether required by the law or not!

For more information, the New York State Department of Labor has published this flyer on Workplace Violence Prevention Program Requirements.

Posted By Diane Pfadenhauer In New York Law | Permalink

Don't forget that as of January 1, 2007 New York's minimum wage goes up to $7.15/hour.  So, it is time to replace the minimum wage poster hanging on your wall.  And, just because you pay more than the minimum wage, that doesn't mean that you don't have to put the poster up.  Here's a link to a free poster:

New York State 2007 Minimum Wage Poster

Posted By Diane Pfadenhauer In New York Law | Permalink

The new Consumer Communication Records Privacy Act places limits on the use and disclosure of Social Security account numbers, and clarifies what is considered a computer crime.
The new law is actually comprised of three different laws and protects consumers by:

• prohibiting the sale, fraudulent transfer, or solicitation of a consumers telephone records without consent from the consumer.
• placing limits on the use and dissemination of this Social Security numbers – it,
  

• prohibits the intentional communication of an individual’s SSN to the general public;
• restricts businesses’ ability to print an individual’s SSN on mailings or on any card or tag required to access products, services, or benefits; 
• prohibits businesses from requiring an individual to transmit his or her encrypted SSN over the Internet; and
• requires businesses that possess Social Security Numbers to implement appropriate safeguards and limit unnecessary employee access to them.
  

• New York State’s Penal Law has been revised as it pertains to the unauthorized use of computers. This law strengthens existing law to allow for the prosecution of those who intentionally disrupt, steal personal information, and plant malicious programs on consumer’s computers without authorization.

Additional New York Laws relating to the protection of confidential information include:

• The Security Freeze Law - which allows consumers, who are either identity theft victims or are concerned that they might be at risk of having their identities stolen, to cut off an identity thief's access to credit, loans, leases, goods and services by placing a “freeze” on their consumer credit report.
• The Disposal of Personal Records Law - requires any business to properly dispose of records containing personal information through one of the following means: shredding, destruction, modification, or other reasonable action to ensure that no unauthorized person will have access to the personal information.
  
• The Anti-Phishing Act of 2006 - prohibits the deceptive solicitation of personal information through electronic communications. “Phishing” accounts for nearly 25% of all Internet fraud.
  

While not all of these are specifically related to the workplace, employers often use social security numbers as identifiers of employees. In addition, employers, as we have previously stated, need to ensure that their disposal practices are up to snuff.

For the actual text of the new law, go here.

Posted By Diane Pfadenhauer In Employment Law , New York Law , Policies & Procedures | Permalink

I am off to Saratoga this morning to attend the New York State Bar Associations' Annual Fall Meeting in Saratoga.  I'll be chairing a panel on Investigating Allegations of Sexual Misconduct in the Workplace.   Looking forward to a productive meeting.

Posted By Diane Pfadenhauer In New York Law , Workplace Investigations | Permalink

All too often employers are confused regarding their obligations in NY regarding jury service.  New York State has a website specifically dedicated to providing information for the public at large and employers regarding their respective obligations in NY.  In addition, the site provides a link to an employer handbook detailing the employer's obligations.  Some interesting questions are answered, such as:

WHICH EMPLOYERS MUST PAY THE JURY FEE?
Employers of more than 10 employees are required to pay jurors at least the jury fee amount or the employee’s wage (whichever is lower) each day for the first three days of jury service. If the juror’s daily wage is less than the jury fee then the State makes up the difference. Employers of 10 or fewer employees are not required to pay the jury fee. The State will pay the jury fee of jurors who work for employers of 10 or fewer employees if the jurors are not paid at least the jury fee by their employers. Jurors are not paid for travel nor are meals or lodging provided except in the rare trial where a jury is sequestered overnight.

MAY AN EMPLOYER REQUIRE AN EMPLOYEE TO TAKE VACATION OR OTHER PAID LEAVE WHILE SERVING?
No. It is an illegal penalty to force an employee to charge jury duty absence against vacation, personal or sick time. However, because some employees may not be receiving full pay, an employee may choose paid leave over losing wages.

MAY AN EMPLOYER REQUIRE AN EMPLOYEE WHO SERVES AS A JUROR TO MAKE UP TIME?
No. It is an illegal penalty to force an employee to work on days when the employee is not normally scheduled to work in order to make up for workdays lost as a result of jury service.

MAY AN EMPLOYEE WHO IS SERVING AS A JUROR BE REQUIRED TO WORK WHILE SERVING?
It is an illegal penalty to force an employee to work a full shift while the employee is serving full days on jury service. Where a day’s jury service is completed with less than a full day’s court appearance, or where the required reporting to work is for a relatively short period of time, it is up to the Jury Commissioner to determine whether the required reporting to work is an illegal penalty. Factors considered include the number of hours spent at the courthouse, number of hours to be worked on the job, travel time to and from court, travel time to and from the workplace, child care or other arrangements made by the employee in anticipation of jury service, and any other factor reasonably related to an employee’s availability to work.

ARE PART-TIME EMPLOYEES PAID FOR JURY SERVICE?
Part-timers who miss work due to jury service are paid the jury fee on the same basis as full-time employees.

ARE EVENING OR NIGHT WORKERS PAID FOR JURY SERVICE?
Evening or night workers who miss work due to jury service are paid the jury fee on the same basis as are employees who work during the day.

Follow these links for more information:

Employer's Guide to Jury Service in New York State
New York Juror Information Website

 

Posted By Diane Pfadenhauer In New York Law | Permalink

The New York State Workers Compensation Alliance has a detailed post on recent amendments to New York State's Workers' Compensation Law.    These changes were enacted in the most recent legislative session.  Everything from spinal implants, lyme disease, 911 injuries, self-insurance and so on are covered by this lengthy analysis, with understandable explanations. 

Posted By Diane Pfadenhauer In Employment Law , New York Law | Permalink

For those considering hiring teens this summer, these links to pages on the USDOL website offer useful information for compliance with state labor laws relating to minors. The first is a Summary of State Laws Concerning Child Labor Standards Affecting Minors Under 18 in Non-farm Employment as of January 1, 2006. In addition, this link provides a summary of Employment/Age Certification Issuance Practices Under State Child Labor Laws.

For those in New York, here is the link to the New York State Department of Labor's information on child labor law.

The folks as the Workers Comp Insider also remind us of the need to focus on the safety of younger workers. Their top ten list includes a few useful tips as well as links to other resources on the web concerning teen safety on the job.

Now there are no excuses for making mistakes when hiring minors this summer.

Posted By Diane Pfadenhauer In Employment Law , New York Law , Staffing, Recruitment, Selection | Permalink

Last week New York City's "Equal Benefit Law" was struck down by the New York Court of Appeals.  The law required any contractor with contracts in excess of $100,000 with a city agency to provide benefits to domestic partners, equal to those provided to spouses.  The Court noted that the law was pre-empted by ERISA and another state statute relating to public works contracts.

Thanks to Ross for bringing this to our attention.  For more information (and a link to the opinion), view his post here.

Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law , New York Law | Permalink

Troy Rosasco, fellow Long Island blogger, and editor of the Disabled Worker Law Blog provides an interesting perspective on recent proposals to change New York's workers' compensation system.  Troy, as a representative of the disabled and of workers injured on the job, as usual takes a strong stand against some of the changes.  For human resources professionals, it's worth the read.  All too often we hear the pro-employer side of the issues in our day to day readings.  This is an interesting way to see what the issues are from the other side.

Posted By Diane Pfadenhauer In Compensation & Benefits , New York Law 1 Comments | Permalink

The minimum wage in New York State increased to $6.75/hour, effective January 1, 2006.  It will increase to $7.15 on January 1, 2007.  Now it's time to update that wage and hour poster.  Now all of those poster companies that annoy you with emails, faxes, and telephone calls will be inundating you with messages telling you that you will go to jail if you don't buy the poster from them.  To bad for them, you can get it here for FREE!

Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law , New York Law | Permalink

...the striking transit workers or the millions of New York City workers freezing their tails off walking over the 59th Street Bridge?  With weather forecasts in the teens for tonight, I suspect that New York City commuters are going to seriously run out of patience over the course of the next few days while the transit workers engage in an illegal strike.  For those of you who aren't experts on New York public sector labor relations, it is illegal for public sector employees to strike in New York State.  The "Taylor Law" as it's known imposes a penalty of two day's pay for each day an employee strikes.  Before long, the employees will be working for free.  In addition, a judge today imposed a $1,000,000/day fine on the union for each day of the strike.

For those of you who think I might be swayed in favor of management here - you're right.  The idea the employees are striking over free health insurance when most of the world doesn't get it for free bothers me.  The fact that striking is illegal and they decided to do it anyway bothers me.  The fact that employees making $60,000 are on strike resulting in other workers making far less having to walk to work bothers me even more.  Let's face it, the only ones not bothered by this strike are those that can afford to cab it into Manhattan or in a lofty enough job to telecommute from home and avoid the hassle altogether.  Lastly, having just returned from New Orleans and seeing the devastation first hand..... I really have no sympathy.

For a more thought provoking article on the subject (other than my rant here), the Christian Science Monitor discusses some of the implications of the strike here.  For the latest happenings from the union's side, see their blog here.

Posted By Diane Pfadenhauer In Labor Relations , New York Law 1 Comments | Permalink

Bet you never even heard of it!  Why?  Because it's not found in any New York wage payment law.  The regulation applies when an employer pays employees at or near the minimum wage  Generally, the rule applies when:

1. The employee's spread of hours' exceeds 10 hours (from the start of the day to the end of the day, including meal and break time).
2. When the employee works a split shift in the workday with nonconsecutive work hours.  Meal periods of one hour or less don't count to interrupt the continuity of the shift.

The employer is obligated to pay one hour of additional pay for each hour in excess of 10 hours and for each split shift.   If both situations occur, the employee gets 2 hours additional pay.  In other words, if the employee works 11 hours at NY's current minimum wage ($6.00 until January 2006 when it will go up to $6.75), it owes the employee 12 hours of pay.  If those 11 hours were the result of a split shift, it would owe the employee 13 hours pay for those hours.  These additional hours where the employee did not work are paid at the minimum wage.

So how does the employer get around this?  They should pay $6.60/hour if their work schedules would result in the instance where one additional hour would be owed (spread of hours or split shift), or $7.20/hour in the instance where work schedules would result in 2 hours being owed.

For those of you who want to try to figure this out yourself, good luck!  I actually can't even provide a link to the regulation as the state doesn't have it online!!  But, it can be found here 12 N.Y.C.C.R. Sec. 142-2.4 (if you remember what an actual library is!).

Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law , New York Law , Policies & Procedures | Permalink

This article provides an overveiw of recent changes to the New York City Human Rights Law.  The new amendments, called the Local Civil Rights Restoration Act of 2005, make the following changes:

1. [Domestic] "Parnership Status" has been added as a protected class.
2. The definition of retaliation has been modified so that liability may be imposed even though there has been no adverse employment action, so long as the retaliation might deter an individual from engaging in protected activity.
3. The $$$ penalities have increase.

Posted By Diane Pfadenhauer In Employment Law , New York Law | Permalink

Someone recently asked me about whether they could require mandatory direct deposit for their employees.  Apparently, this was a company with out of state employees.  Typically what happens in this scenario is that the payroll is processed centrally and each pay period a pile of checks is mailed to each (typically out-of-state) location.  Everything works well until the overnight courier misses the delivery.  Payday comes and goes with no paychecks.  For the employees who have direct deposit - no problem.  For the employees who are waiting for their checks - big problem. 

The answer to this question generally is a subject of state law.  New York State Labor Law has  specific guidance on this issue.  While many other state do not prohibit mandatory direct deposit, unfortunately New York limits the ability of employers to mandate direct deposit.  Specifically,

S 192. Cash payment of wages.  1. No employer shall without the advance written consent of any employee directly pay or deposit the net wage or salary of such employee in a bank or other financial institution.   2. This section shall not apply to any person employed in a bona fide executive, administrative, or professional capacity whose earnings are in excess of six hundred dollars a week, nor to employees working on a farm not connected with a factory.

For more on New York State's law, go here.  For those in other states, be sure to check in with your particular state's law before mandating direct deposit.

Posted By Diane Pfadenhauer In Employment Law , New York Law , Policies & Procedures 1 Comments | Permalink

Someone recently commented to me that they were in the hot seat over New York's "5 Day Letter."This letter (regulations - Section 196.5 - here) is a requirement that specifically requires employers to provide written notice to employees upon termination of employment regarding the termination of their benefit plans.  Employers must... 

"...notify any employee terminated from employment, in writing, of the exact date of such termination as well as the exact date of cancellation of employee benefits connected with such termination. In no case shall notice of such termination be provided more than five working days after the date of such termination..."

The regulations also provide for some nasty penalties such as a $5,000 fine, AND, where there involves a failure to provide notice of the termination of a group accident or group health policy the claimant can be entitled to an award of "appropriate damages" which may include "reimbursement for medical expenses which were not covered by the policyholder's insurer by virtue of his termination..."  In addition, this penalty can be doubled for egregious violation.  For the details, go Sections 217 & 218 here. Most large employers satisfy this requirement by sending out a COBRA notice (as long as done within 5, not the 14 days as required by COBRA).  Unfortunately smaller employers, who are not subject to COBRA's notice requirements, should make sure their paperwork is in order and be sure to send out these notices. Posted By Diane Pfadenhauer In Employment Law , New York Law , Policies & Procedures | Permalink