Strategic HR Lawyer

There has been a lot of discussion of late on the subject of payroll advances, recouping employee loans and such from employee pay in New York.  And, not surprisingly, the NYS Department of Labor has changed its position on permissible deductions.

So, generally, here is the rule:  New York State Labor Law, Section 193, generally prohibits deductions from wages with few exceptions.  What would arguably apply here is the exception for a deduction “authorized in writing by the employee” and “for the benefit of the employee.”  These deductions are generally limited to: insurance premium, benefits, labor dues and “similar payments for the benefit of the employee.”

Prior to January of 2010, the NYS Department of Labor took a broad view of this rule and permitted certain deductions – for example loans and other advances of payroll.  In the past several years there have been court cases in NY which have narrowed the permissible interpretation of the statute and in January of 2010, the NYS DOL reversed its previous position and now takes the following position:

• Deductions for overpayments to employees are NOT permitted, even with the employee’s written consent.
• Deductions to recoup salary or benefit advances to employees are NOT permitted, even with the employee’s written consent.
• Deductions for tuition payments are NOT permitted.
• Requiring the employee to pay back money owed to an employer in a separate transaction or be subject to discipline is NOT permitted.

This is my general interpretation and your particular situations will likely be fact-specific.  Thus, I suggest that if you are considering ANY of these types of deductions from an employee's pay that you seek the advice of your attorney before proceeding.

Presumably this interpretation falls in line with the letter of the law - specifically, the statute is somewhat narrowly written. It does, however, put employers and employees in a precarious position.

 

Posted By Diane Pfadenhauer In New York Law | Permalink

In Zakrzewska v. The New School, the NY State Court of Appeals issued a blow to employers in New York City who have relied upon the Faragher-Ellerth Defense in sexual harassment claims. 

Generally under the Faragher-Ellerth Defense employers an employer may avoid liability for sexual harassment claims under Title VII of the Civil Rights Act of 1964 for acts committed by a supervisory employee if it can demonstrate the following:  1) that there was no tangible employment action taken against the individual, 2) that the employer acted promptly and responsibly to correct any harassing behavior, and that the employee failed to avoid harm otherwise.

Employers have long relied on this defense to minimize their exposure. However, in Zakrzewska, interpreting the New York City Human Rights Law, the Court of Appeals asserted that the clear language of the statue precludes the availability of the Faragher-Ellerth defense.  Specifically, an employer "...shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of [the statute] where: (1) the employee or agent exercised managerial or supervisory responsibility...

I say don't throw out your training and policies yet.  Avoidance of lawsuits is the best defense!

Follow this link to:  Zakrzewska v. The New School

P.S. Did you ever notice that in theses landmark cases, the names of the parties are often so difficult that you can't pronounce or spell them?

 

Posted By Diane Pfadenhauer In New York Law | Permalink

Lovely.  Let's [NOT] thank our fine New York State Department of Labor for its communication skills! 

A few weeks ago, they managed to put everyone into a tizzy by announcing that employers had to use their own poorly written, misleading form to inform employees about their wage rate on hire.  Now, with NO fanfare, announcement or anything, they've back-peddled on the whole idea and haven't told anyone!

Here's the text from the DOL press release on 10/29: The notice must be provided on a form available from the New York State Department of Labor, and must be given to new employees before they do any work.

Here's the where the link from the press release takes you ( with key language I have highlighted in bold).  Language regarding the use of their notice - GONE - with no fanfare or updated announcement:

Starting on October 26, 2009, employers must give newly-hired workers written notice of the rate at which they will be paid and their regular payday, under Section 195.1 of New York’s Labor Law. The notice must be given to new employees before they do any work.

The written notice must also include the employee’s overtime rate of pay, if they qualify for overtime. Most employees must receive overtime pay at one-and-a-half times their regular rate of pay for all hours they work over 40 in a given week. A very few occupations are not covered by the overtime provisions of labor law, such as farm workers and professionals.

No particular form is required.  Employers may create their own forms, or use and/or adapt a sample form available at the link below.  In the near future, sample forms for a variety of pay agreements (salaried, prevailing rate, exempt, and others) will be provided here.

 

Hey, I'm all about protecting employees from unscrupulous employers.  However, I am not at all a fan of issuing regulations and requirements that are not carefully thought through, misleading, poorly communicated and add additional expense for my clients to do business - particularly in this economy.

 

 

 

 

Posted By Diane Pfadenhauer In New York Law | Permalink

The New York State Department of Labor has just issued a model notice for employers and a fact sheet (for both employers and employees) explaining the new requirement under Labor Law Section 195 which requires employers to advise new hourly employees of, among other things:

• their hourly rate
• their potential overtime rate

The form also includes notice of pay days which was already required under state law.  The State DOL had previously issued a model notice for temporary agencies.  Interestingly, in a new twist, it appears that the DOL is now requiring that you use their particular form.

You can find these notices/forms here, and should complete them in accordance with your particular organizational situation.

Follow these links:

Notice and Acknowledgement of Wage Rate and Designated Payday Hourly Rate Plus Overtime

Notice of Pay Rate and Payday for New Hires (for employers and employees)

Posted By Diane Pfadenhauer In New York Law | Permalink

Governor Paterson recently signed into law an Amendment to the New York State Labor Law affecting employer record keeping requirements.  Generally:

Section 1 of the bill would amend Labor Law 195(1) to require employers to provide employees with written notice at the time of hire of their regular and overtime hourly wage rates, and to obtain a written acknowledgment of receipt of this notice.

The law will go into effect 90 days after the Governor signed it on July 28th.

Follow this link to the Senate Bill on this this subject:  New York State Senate Bill S3357
 

 

Posted By Diane Pfadenhauer In New York Law | Permalink

Governor Paterson recently signed into law an amendment to the State's Executive Law protecting victims of domestic violence or stalking. This new law specifically applies to employment and hiring practices.   According to the Assembly Bill on this subject:

"An act to amend the executive law, in relation to prohibiting employers from discriminating against victims of domestic violence or stalking based upon status as a domestic violence victim."

Commentary on the Justification for the New Law:

"This bill is intended to protect the economic viability of victims of domestic violence and to support their efforts to gain independence from their abusers. Many women stay with their abuser because they lack alternative financial resources for themselves and their children. Escaping an abusive relationship often depends on financial independence, which means finding and keeping a job. It is not unusual for a victim of domestic violence to need time away from work to confer with an attorney or domestic violence counselor, appear in court, seek medical attention, arrange for alternative housing or recuperate from injuries. Often a victim of domestic violence is embarrassed or fears losing her job and, therefore, is reluctant to inform her employer of the circumstances of her life. It is not unusual for a victim of domestic violence to be terminated from her job or demoted because she needs time of or flexible hours as a protective measure. This legislation will make it unlawful for an employer or licensing agency to discriminate against victims of domestic violence in hiring or employment practices, helping to ensure the safety as well as the economic viability of victims."

Follow this link to the original Assembly Bill: NY Assembly Bill 755A

 

Posted By Diane Pfadenhauer In New York Law | Permalink

Governor Paterson recently signed into law an extension of COBRA coverage in New York state.  According to the press release from his office, the following are the most significant changes affecting employers:

• Expansion of COBRA coverage for Employees to 36 Months: This law will increase the period for employees who lose their jobs to continue their health insurance under COBRA from 18 to 36 months. Under the federal Consolidated Omnibus Budget Reconciliation Act (COBRA), workers who lose their jobs can continue purchasing group health insurance provided by their former employers’ group health plans for limited periods of time under certain circumstances for themselves and their families. Federal COBRA generally applies to employers with 20 or more employees, while the State’s “mini-COBRA” law requires that smaller employers – those who have fewer than 20 employees – offer the same continuation coverage. This allows employees to maintain health insurance at a lower cost than if they had to buy it independently on the open market. The Governor’s new law will allow New Yorkers who lose their jobs to extend their health insurance coverage for a longer period of time, which is particularly important in the current economy with its record high level of unemployment.

• Insure Dependents through Age 29: This law, outlined by the Governor in his State of the State address, requires insurers to allow unmarried children through age 29 – regardless of financial dependence – to be covered under a parent’s group health insurance policy. Young adults ages 19 to 29 represent 31 percent of uninsured New Yorkers. They often become ineligible for coverage under their parents’ policies at age 19 or upon high school or college graduation, find themselves in entry-level jobs that do not provide employer-based health insurance, and cannot afford to pay premiums for individual insurance policies – which are much more expensive than group policies. Under the new law, premiums will be paid for by families, not employers, and would cost less because coverage is under group policies rather than individual policies. The law also requires insurers to offer employers an option to purchase coverage that includes young adults as dependents in family policies through age 29.

Now in theory, this looks like a bad thing for employers.  However, if your company is small, and thus community rates, the former employee on COBRA will be paying the premiums and his/her claims experience will not have an impact on the employer's premiums.  However, employers looking to avoid costs may rethink their contributions to family coverage if they will have to cover dependents longer - to age 29.

Here's the link to the Governor's press release:  GOVERNOR PATERSON SIGNS LEGISLATION TO MAKE HEALTH INSURANCE MORE AFFORDABLE AND IMPROVE ACCESS TO HEALTH CARE

 

Posted By Diane Pfadenhauer In Compensation & Benefits , 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 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.

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

I recently reported that New York State became one of several other states to enact its own mini-Warn Law.  In summary, the New York State Workers Adjustment and Retraining Notification (WARN) Act requires the following:

• Employers must provide 90 days’ notice prior to a plant closing, mass layoff or relocation occurring on or after February 1, 2009.
• Notice must be provided to affected employees and their representatives, the New York Department of Labor and the local workforce investment board at least 90 days before the event.
• For employers planning layoffs shortly after the new law takes effect, notice would have to be provided prior to the law’s effective date to meet the 90-day requirement.
• The state WARN Act applies to private employers with 50 or more workers who layoff at least 25 employees.

Many who have reviewed the statute would argue that from a drafting perspective, it leaves a great deal to be desired!  Thus, in order to clarify a whole host of ambiguities and inconsistencies the New York State Department of Labor issued an emergency rule, opened a comment period and is slated to issue regulations under the new statute.

Here is a link to the actual statute that confused many of us:

New York WARN Act Statute

Here are a few helpful links providing some clarification:

New York State Department of Labor "WARN" Page

New York WARN Act Regulations

Summary of Proposed Rule

 

Posted By Diane Pfadenhauer In New York Law | Permalink

New York State recently passed its very own "New York State Worker Adjustment and Retraining Notification Act."   Many other states have enacted their own versions of this type of legislation and this one, like some of the others, is far more expansive than the Federal WARN.

Expected to take effect in February 2009, the law adds a new Article 25-A to the State Labor Law. Here are some of the general provisions:

• it requires employers with 50 or more full-time employees to provide at least 90 days notice to affected employees and representatives of affected employees, the New York State Department of Labor, and local workforce partners before ordering a mass layoff, relocation, or employment loss;
• it provides exceptions to the notice requirement, including that:
  1. the need for notice was not reasonably foreseeable at the time the notice would have been required;
  2. the employer was actively seeking capital or business at the time the notice was required and met certain other conditions; and
  3. the closing or layoff was due to a natural disaster;
• it makes an employer in violation of the article liable for back pay and other employee benefits for 60 days of the violation;
• it provides for a civil penalty of $500 per day of violation.

This law is in contrast to Federal WARN which:

• requires only 60 days notice;
• applies only to employers with 100 employees or more and requires a larger number of affected employees before the notice provisions are triggered; and
• it does not provide for administrative enforcement.

 

Posted By Diane Pfadenhauer In New York Law | Permalink

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

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