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New York Employment Laws and Requirements for 2009

Source: Rao Ongaro Burtt & Tiliakos

January 1, 2009

Below is a summary of new employment laws and requirements applicable to private New York employers in 2009. We at Rao Ongaro LLP are always available to answer any question you may have regarding these and any other New York workplace laws and requirements.

• Broadcast Employees’ Freedom to Work Act: A broadcasting industry employer may not require a broadcast employee to refrain from fairly competing or obtaining employment in any specified geographic area for a specific period of time or with any particular employer or in any particular industry after the conclusion of employment. A broadcasting industry employer includes television stations or networks, radio stations or networks, cable stations or networks, Internet or satellite-based services similar to a broadcast station or network, any broadcast entities affiliated with any of the employers, or any other entity that provides broadcasting services such as news, weather, traffic, sports, or entertainment reports or programming. Broadcast employee means any on-air employee or off-air employee of a broadcasting industry employer, excluding management employees.
• Commissions Deemed Earned: An employer’s commission plan or the parties’ course of dealing determines when a commission is earned. Prior to a commission being earned, New York’s wage deduction law is inapplicable.
• Criminal Background Checks: Effective February 1, 2009, New York employers who request an “investigative consumer report” in connection with an employment offer must provide prospective employees with written notice, along with a copy of Article 23-A of N.Y. Correction Law. When an employer receives a background report containing a criminal conviction, the employer must provide a copy of Article 23-A of N.Y. Correction Law to the applicant or employee.
• Executives and Labor Law Coverage: “Executives” are covered by certain New York State Labor Laws, including Article 6, Section 190 et seq. (“Payment of Wages”). However, executives who earn over $900 per week may not file a claim for fringe benefits, including bonuses, pursuant to Section 198-c.
• Federal ADA Amendments: The ADA Amendments Act of 2008 (ADAAA) amended the ADA by, among other things: (a) rejecting the definition of disability to be an impairment that prevents or severely restricts an individual from doing activities that are of central importance to one’s daily life; (b) prohibiting the consideration of mitigation measures (except eyeglasses or contacts generally); and (c) permitting those who are discriminated against based on a perceived disability to file a claim regardless of whether the perceived disability limits or is perceived to limit a major life activity (transitory and minor impairments are excluded). An employer’s duty to accommodate does not extend to people who claim discrimination under the “regarded as” prong.
• Federal FMLA Regulations: New U.S. Department of Labor regulations become effective on January 16, 2009. The new regulations cover FMLA leave related to military service, including a definition of “exigency” and when employees may take FMLA leave. Other changes include: (a) new poster and notice requirements; (b) eligibility for leave if the employee has a break in service; (c) when bonus payments may be denied to an FMLA employee; (d) increased penalties; (e) requirement that employers indicate how much time will be used as FMLA; (f) new forms for certification of an employee’s own serious illness/injury and for the employee’s family member.
• Federal Genetic Information Nondiscrimination Act of 2008: Insurers and employers are prohibited from using genetic information to discriminate against insureds or employees.
• Form I-9: Passport cards issued by Homeland Security may be used as a “List A” document to verify employment.
• Identity Theft: Employers may not: (a) post or display an employee’s Social Security number; (b) visibly print a Social Security number on any identification badge or card (including a time card); (c) place Social Security number in files with open access; and (d) communicate an employee’s “personal identifying information” (Social Security number, home address or telephone number, personal e-mail address, Internet identification name or password, last name prior to marriage, and drivers’ license number) to the general public. A violation will be presumed to be “knowing” if no policies and procedures are in place, including informing or training certain employees about the restrictions. Also, it is unlawful for any person to file documents available to the public that contain Social Security numbers. This includes filing documents with a state agency or court (the law does not apply where Social Security numbers are required by federal or state law or regulation, or court rule, or if the person is a dependent child or has consented to the filing).
• IRS Mileage Rate: Increased to 55 cents per mile.
• New Posters:
  • Equal Employment Opportunity is The Law (federal);
  • Family and Medical Leave (federal);
  • Blood Donation Leave;
  • New York Correction Law, Prior Criminal Convictions;
  • Right of Nursing Mother's to Express Breast Milk;
  • Discrimination Notice;
  • Deductions from Wages and Tip Appropriation;
  • New York Minimum Wage.
• NY WARN: NY WARN is different than Federal WARN in the following ways: (a) New York employers with 50 or more full time employees are covered; (b) it applies to a layoff of 25 employees in the course of 30 days; (c) 90 days of notice (not 60 days) is required for plant closings and mass layoffs (definition is broadened); (d) it requires notice for any relocation of all or substantially all of the industrial or commercial operations of an employer from one location to another 50 or more miles away; (e) notice must be provided to affected employees represented by a union; and (f) the New York State Department of Labor or individuals may enforce the law.
• Prior Criminal Convictions: Article 23-A of New York’s Correction Law and § 753 require employers to balance factors before terminating or refusing to hire individuals with a prior criminal conviction. Factors to include are: (a) the relationship between a prior offense and the individual’s ability to perform specific duties of the job; (b) the length of time elapsed since the offense; (c) the individual’s age at the time of the offense; (d) the seriousness of the offense; and (e) any information attesting to the individual’s rehabilitation and good conduct. In September 2008, New York State Human Rights Law will be amended to protect employers from negligent hiring claims. If an employer has evaluated an applicant’s criminal history in accordance with Article 23-A and decided to hire the individual, the employer has a rebuttable presumption that information regarding the individual’s criminal background should be excluded from evidence.
• Political Speech: New NLRB guidelines provide: (a) non-disruptive political advocacy for or against a specific issue, related to a specifically identified employment concern that takes place during an employees’ own time and in non-work areas is protected; (b) on-duty political advocacy for or against a specific issue, related to a specifically identified employment concern is subject to restrictions imposed by lawful and neutrally applied work rules; and (c) leaving or stopping work to engage in political advocacy for or against a specific issue, related to a specifically identified employment concern also may be subject to restrictions imposed by the employer.
• Same Sex Marriages: New York State Insurance Department Circular Letter No. 27 requires recognition of same-sex marriages validly entered into in other states.
• Written Commission Plan for Commission Salespersons: New York law mandates employers to have written commission agreements for all commission salespersons that are signed by the employer and commission salesperson. The commission agreement must include: (a) a description of how wages, salary, draw on commissions, commissions, and all other amounts earned and payable are calculated; (b) where the writing provides for a recoverable draw, the frequency of reconciliation between draw and earned commissions; and (c) details concerning payment of wages, salary, draw, commissions and all other monies earned and payable upon termination. The agreement must be retained for three years. Failure to comply creates a presumption that the terms of employment as described by the commissioned salesperson are accurate.

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