Overview of New York Employment Laws

Transcription

1 Overview of New York Employment Laws

2 OVERVIEW OF NEW YORK EMPLOYMENT LAWS EQUAL OPPORTUNITY EMPLOYER It is an unlawful discriminatory practice for an employer, because of the age, race, creed, color, national origin, sexual orientation, military status, sex*, disability, predisposing genetic characteristics, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment (Sec. 296(1)(a)). Also, the New York City Human Rights Law defines the term "gender" to include actual or perceived sex and also a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth (Administrative Code of the City of New York, Title 8, Sec (23)). AT-WILL EMPLOYMENT STATUS New York is an at-will employment state and there is no liability for breach of contract for terminating an employee. EMPLOYER JOB REFERENCES New York does not have a job reference liability law. NEW-HIRE REPORTING Employers must report all new hires or rehires (N.Y. Tax Law Sec. 171-h(1)). Reports must be submitted within 20 calendar days of the first day on which compensated services are performed by the employee. Employers transmitting reports magnetically or electronically must make two monthly transmissions (if necessary) not less than 12 days or more than 16 days apart. (N.Y. Tax Law Sec. 171-h(3)(c)). CRIMINAL BACKGROUND CHECKS Except as otherwise provided by law, no person, as a condition of securing employment or of continuing employment must be required to be fingerprinted (NY LabLaw, Sec. 201-a). It is an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, or by a youthful offender adjudication, or by a conviction for a violation sealed pursuant to Sec of the Criminal Procedure Law in connection with the licensing, employment or providing of credit or insurance to such individual; provided, however, that these provisions do not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons or in relation to an application for employment as a police officer or peace officer; provided further that the provisions of this subdivision shall not apply to an application for employment or membership in any law enforcement agency with respect to any arrest or criminal accusation 1

3 which was followed by a youthful offender adjudication, or by a conviction for a violation sealed pursuant to Sec of the Criminal Procedure Law (Executive Law, Art. 15, Sec. 296(16)). ELECTRONIC MONITORING Employers must obtain consent from at least one party to employees' telephone conversations before monitoring or recording the conversations (N.Y. Penal Law Sec , ). POLYGRAPH TESTING It is unlawful for any individual to knowingly administer or participate in the administration of a psychological stress evaluator examination of an employee or prospective employee (NY LabLaw, Sec. 734(1)). ACCESS TO PERSONNEL RECORDS New York does not have a general access to personnel files law for private employers. CHILD LABOR When school is in session, no minor 14 or 15 years of age may be employed during school hours, outside 7:00 a.m. and 7:00 p.m., or more than: (1) 3 hours on a school day; (2) 8 hours on a nonschool day; (3) 18 hours a week; or (4) 6 days a week. When school is not in session, between June 21 and Labor Day, they may not be employed outside 7:00 a.m. and 9:00 p.m., or more than: (1) 8 hours a day; (2) 40 hours a week; or (3) 6 days a week. When school is in session, no minor 16 or 17 years of age may be employed during school hours, outside 6:00 a.m. and 10:00 p.m. (12:00 p.m. with written parental consent) or more than: (1) 4 hours on a school day; (2) 8 hours on any day when school is not in session; (3) 28 hours a week; or (4) 6 days a week. If the minor works past 10:00 p.m. on the day proceeding a school day they must provide the employer with a certificate of satisfactory academic standing from school. When school is not in session, between June 21 and Labor Day, they may not be employed outside 6:00 a.m. and 12:00 p.m., or more than: (1) 8 hours a day; (2) 48 hours a week; or (3) 6 days a week (NY LabLaw, Sec. 142). Employers must make a schedule for all minors employed by the employer, setting forth the hours of beginning and stopping and the time allowed for meals. This schedule must be kept conspicuously posted in each establishment where such persons are employed (NY LabLaw, Sec. 144). COMPANY BENEFITS Pay Days Except as noted below, non-railroad workers must be paid at least semi-monthly. For manual workers, wages must be paid weekly not later than 7 days after the end of the week earned. Manual workers employed by nonprofit organizations may be paid in accordance with the agreed terms of employment, but not less frequently than semimonthly (NY LabLaw, Sec. 191). Employers must pay commissioned salespersons all money earned or payable in accordance with the terms of employment (which must be in writing), but not less frequently than once each 2

4 month and not later than the last day of the month following the month in which they were earned (NY LabLaw, Sec. 191-c). Payment Of Wages Upon Separation Of Employment If employment is terminated, the employer must pay the wages not later than the regular payday for the pay period during which termination occurred. If requested by the employee, the wages must be paid by mail (NY LabLaw, Sec. 191). Overtime Employers must pay most employees overtime compensation at the rate of 1 1/2 times the employee's regular rate, as provided in the federal Fair Labor Standards Act (FLSA). In addition, employers must pay employees subject to the FLSA's Section 13 exemptions overtime at a rate of 1 1/2 the basic minimum hourly rate (NY CompCodesR&Regs, tit. 12, Sec ). Restaurant employers: Employers must pay overtime compensation at the rate of 1 1/2 times the employee s regular rate for hours worked in excess of 40 per workweek (NY CompCodesR&Regs, tit. 12, Sec ). Hotel employers: Hotels must pay overtime compensation at the rate of 1 1/2 the employee s regular rate for hours worked over 44 for residential employees, and for hours worked over 40 hours for nonresidential employees. Employees of resort hotels must be paid overtime for hours worked on the 7th consecutive day in any week (NY CompCodesR&Regs, tit. 12, Sec ). Tipped Employees in Restaurants and Hotels Tips may be considered a part of the minimum wage, subject to the following conditions: (1) the occupation in which employees are engaged is one in which tips have customarily and usually constituted a part of their remuneration; (2) substantial evidence is provided that employees received in tips at least the amount of the allowance claimed; and (3) the allowance claimed by the employer is recorded on a weekly basis as a separate item in the wage record. Food service workers must receive a cash wage greater or equal to $4.60 if, when combined with their tips, their total wages equal or exceed $7.15 per hour. Chambermaids in resort hotels must receive a cash wage greater or equal to $4.85 if the average tips of the worker are more than $4.05 per hour. If a Chambermaid s tips are between $1.10 to $4.05 per hour, the worker must receive a cash wage greater or equal to $6.05. Other service workers must receive a cash wage greater or equal to $7.15 if the average tips of the employee are less than $1.60 per hour. Workers whose tips are between $1.60 to $2.30 per hour must receive a cash wage greater or equal to $5.55. Workers must receive a cash wage greater or equal to $4.85 if the average tips of the worker are $2.30 or more per hour. Exception for resort hotels: the allowance for tips shall not exceed $2.85 per hour for an employee whose weekly average of tips exceeds $4.05 (NY CompCodesR&Regs, tit. 12, Secs.137-1, 138-2, 142-2). 3

5 Wage Garnishments/Deductions No employer can discharge, lay off, refuse to promote, or discipline an employee or refuse to hire a prospective employee because one or more wage assignments or income executions have been served against the employee or prospective employee (NY CPLR, Sec. 5252). Paid Vacation New York laws do not require nor prohibit paid vacation leave. However, under the "wages" definition, vacation pay is included as a "wage supplement," and thus it may be due upon termination if owed under the parties agreement (NY LabLaw, Secs. 190(1) and 198-c(2)). Health Insurance The State of New York does not require employers to provide health insurance for their employees. Health Insurance Continuation An employee or member, and his or her dependents, covered by a group plan, are generally eligible. However, coverage will cease when the employee, member or dependent first becomes, after the date of election, entitled to coverage under Medicare or under another group plan that contains no exclusion or limitation on preexisting conditions of such employee, member, or dependent (NY Insurance Law, Sec. 3221(m)(1)(A) and (B)). A group policy may not terminate the coverage of a dependent spouse when the spouse or employee attains the minimum age for Medicare eligibility for so long as the policy remains in force and the spouse is ineligible to receive any of such Medicare benefits. In order for this provision to apply, proof of the spouse's Medicare ineligibility must be submitted to the insurer within 31 days of the date notice of termination of coverage is sent by first-class mail (NY Insurance Law, Sec. 4235(f)(3)). Coverage is triggered when an employee or member ceased to be insured under a group policy because of termination of employment or membership in the class eligible for coverage (NY Insurance Law, Sec. 3221(m)). Continuation coverage generally last for 18 months after group coverage terminates. For dependents whose group coverage terminated due to: (1) the death or divorce of the covered person; (2) dependent ceasing to be eligible under the plan; or(3) the covered person's eligibility for Medicare, coverage will last for 36 months. An employee who is determined to be disabled at the time of termination of employment is entitled to coverage until the employee is not longer disabled, up to a maximum of 29 months of coverage (NY Insurance Law, Sec. 3221(m)). Worker s Compensation No compensation is allowed for the first seven days of disability. If the injury results in a disability of more than 14 days, compensation is allowed from the date of disability (Sec ). The waiting period for occupational loss of hearing is three months after removal from the harmful noise exposure or after separation from work for the last employment in which exposure to harmful noise occurred (Sec bb). 4

6 The employee may choose a physician from a state list and may transfer to another authorized physician (Sec a). An employer must record and report any injury or illness to an employee incurred in the course of employment and retain the record for 18 years. A report of accidents that will cause a loss of one day or more or will require medical treatment beyond first aid or two or more first aid treatments must be made by the employer to the chair of the workers' compensation board (Sec ). Jury Duty Employees may not discharge or penalize employees because of absences due to juror service, provided the employer is notified in advance. Employees summoned to serve as jurors must notify employers to that effect prior to the commencement of service (NY JudLaw, Sec. 519). Employers may withhold employees' wages during jury service; however, employers with more than 10 employees may not withhold the first $40 of a juror's daily wages during the first 3 days of jury service (NY JudLaw, Sec. 519). Trial and grand jurors (except town and village courts) are entitled to an allowance of $40 per day for each day of attendance in court. Employed jurors are not entitled to the allowance if their employers are prohibited from withholding the first $40 of wages and daily wages equal or exceed $40. If daily wages are less than $40, they are entitled to an allowance of the difference between $40 and daily wages. Employed jurors are not entitled to the allowance for regular workdays on which jury service is rendered if wages are not withheld on account of the service (NY JudLaw, Sec. 521). Voting Employers must allow employees Sufficient time off to vote, unless such time exists during nonworking hours; 4 consecutive nonworking hours while polls are open is sufficient. Employees must be compensated for up 2 hours. Employees must notify their employers 2-10 work days prior to election day, and employees must specify hours at beginning or end of shift, unless mutually agreed otherwise (NY ElecLaw, Sec ). Sick Pay/Leave New York law does not require nor prohibit sick pay or sick leave. Donor Leave Employees who work an average of 20 or more hours per week are eligible for a leave of absence to undergo a medical procedure to donate bone marrow. The combined length of the leaves shall be determined by the physician, but may not exceed 24 work hours, unless agreed to by the employer. Employers are free to provide leave for bone marrow donations in addition to leave allowed under any other provision of law. Employers may require verification by a physician for the purpose and length of each leave requested by employees to donate bone marrow (NY LabLaw, Sec. 201-a). An employer must grant 3 hours' leave of absence in any 12-month period to an employee who seeks to donate blood. The leave of absence may not exceed 3 hours, unless otherwise agreed to by the employer, and must comply with specific notice requirements. Those employees without 5

7 use of accumulated leave time to donate blood during work hours are allowed to do so at least 2 times per year at a convenient time and place set by the employer including allowing an employee to participate in a blood drive at the employee's place of employment (NY LabLaw, Sec. 202-j, as amended by S.B. 6490, L. 2007, enacted March 17, 2008). Family, Medical and Parental Leave Adoptive parents of children age 5 and under are eligible to take adoption leave if their employers provide parental leave for birth parents. If the child is hard-to-place or handicapped, the maximum age for leave eligibility is 18 (NY LabLaw, Sec. 201-c). Employees who are pregnant, parents, or in the process of securing legal custody of a child under 18 years of age are protected under New York s human rights laws if they work for a covered employer (NY ExecLaw, Sec. 292). Adoption leave must be on the same terms and conditions as parental leave for biological parents (NY LabLaw, Sec. 201-c). Military Leave of Absence Employers must reinstate former permanent employees who left to perform military service and who: (1) receive a certificate of completion of military service duly executed by an officer of the applicable force of the armed forces or the organized militia; (2) are still qualified to perform the duties of their position; and (3) apply for reemployment within 90 days after being relieved from military service. They must be restored to their former position or to a position of like seniority, status, and pay, unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so (NY MilLaw, Sec. 317). Military Service Discrimination Employers may not willfully deprive organized militia members of employment; prevent or obstruct their employment because of military status; or dissuade enlistment by threat of injury (NY MilLaw, Sec. 251). In addition, employers and associations may not impose rules that discriminate against state militia members based on military status (NY MilLaw, Sec. 252). Employers may not discriminate against or refuse to employ persons because they are subject to military duty under state or federal law (NY MilLaw, Sec. 318). An employer or licensing agency, employment agency, or labor organization, may not discriminate on the basis of military status, refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment (NY ExecLaw, Sec. 296). Family Military Leave The spouse of a member of the armed forces of the United States, National Guard or reserves who has been deployed during a period of military conflict, to a combat theater or combat zone, is eligible to take up to 10 days unpaid leave. An employer may not retaliate against an employee for requesting or obtaining family military leave (NY LabLaw, Sec. 202-i). Disaster and Emergency Services Leave There is no disaster or emergency services leave law for private employers in New York. 6

8 Witness Leave and Leave For Crime Victims Employees who are crime victims or subpoenaed to attend criminal proceedings as witness are eligible for leave to appear as witnesses, consult with the district attorney or exercise rights under the law, if proper notice is given. Victims include next of kin if the aggrieved party is deceased as a result of the offense; victims' representatives; good Samaritans; or persons pursuing application/enforcement of protective orders (NY PenalLaw, Sec ). Employers may not discharge or penalize employees because of absences for jury or subpoenaed witness service (NY JudLaw, Sec. 750). Employees who are crime victims or subpoenaed to attend criminal proceedings as witnesses must notify employers of their intent to take leave prior to the day of attendance. Upon employer request, the party who sought the employee's attendance or testimony must provide verification of the employee's service (NY PenalLaw, Sec ). Meals & Rest Breaks Mercantile and other non-factory employers must provide employees, who work more than 6 hours, with at least 30 minutes for a noon-day meal, between 11 a.m. and 2 p.m. They also must provide employees, who work 6 or more hours between 1 p.m. and 6 a.m., with a meal period of at least 45 minutes, mid-shift. Employers must provide employees, who start before 11 a.m. and continue past 7 p.m., with an additional meal period of at least 20 minutes, between 5 p.m. and 7 p.m. The labor commissioner may issue permits for shorter meal periods (NY LabLaw, Sec. 162). Employers must provide employees with at least 24 consecutive hours of rest per calendar week. Exceptions apply to certain industries and occupations. Employers that operate on Sundays must designate a day of rest for each employee. Employers may not permit employees to work on their designated day of rest (NY LabLaw, Sec. 161). Breastfeeding A mother may not be prohibited from breastfeeding her baby in any location, public or private, where the mother is otherwise authorized to be present, irrespective of whether the nipple is covered during or incidental to the feeding (NY CivRightsLaw, Sec.79-e). An employer must not discriminate in any way against an employee who chooses to express breast milk in the workplace (NY LabLaw, Sec. 206-c). An employer must provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to 3 years following childbirth. The employer must make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy (NY LabLaw, Sec. 206-c). SMOKING POLICY Smoking must not be permitted and no person must smoke in the following indoor areas: (1) places of employment; (2) bars; (3) food service establishments; (4) enclosed indoor areas open 7

9 to the public containing a swimming pool; (5) public means of mass transportation, including subways, underground subway stations, and when occupied by passengers, buses, vans, taxicabs and limousines; (6) ticketing, boarding and waiting areas in public transportation terminals; (7) youth centers and facilities for detention; (8) any facility that provides child care services (provided that such services provided in a private home are excluded when children enrolled in such day care are not present); (9) child day care centers; (10) group homes for children; (11) public institutions for children; (12) residential treatment facilities for children and youth; (13.) all public and private colleges, universities and other educational and vocational institutions; (14) general hospitals and residential health care facilities and other health care facilities licensed by the state in which persons reside; (15) commercial establishments used for the purpose of carrying on or exercising any trade, profession, vocation or charitable activity; (16) indoor arenas; (17) zoos; and (18) bingo facilities (NY LabLaw, Sec o). New York law requires that "Smoking" or "No Smoking" signs, or the international "No Smoking" symbol, which consists of a pictorial representation of a burning cigarette enclosed in a circle with a bar across it, be prominently posted and properly maintained where smoking is regulated by this law, by the owner, operator, manager or other person having control of such area (NY LabLaw, Sec p(1)). In addition, employers may not discharge, discriminate with respect to compensation, promotion, terms, conditions or privileges of employment, or refuse to hire an individual because the individual uses legal consumable products (tobacco included) off the employer's premises during non-working hours (NY LabLaw, Sec. 201-d). Notice of Layoffs The New York Worker Adjustment and Retraining Notification Act (WARN) requires employers of 50 or more employees (excluding part time employees) to provide 90 days advance notice of an employment loss which includes (1) a termination other than for cause, voluntary departure or retirement; (2) a layoff affecting 33% of the workforce which is also at least 25 full time employees or at least 250 full time employees; and 50% reduction in hours of work for each month of six consecutive months. Notices must be provided to the affected employees and their representatives, the state Department of Labor and the local workforce investment boards. There are specific requirements for the notice in terms of content and method of delivery. Liability for violation includes back pay and benefits to the employees and civil penalties in certain circumstances. (NY LabLaw, Sec. 860-A-I) (enacted 5/13/08). 8

10 Guidelines for the Hiring Process

11 HIRING PROCESS GUIDELINES Using proper hiring techniques ensures that the Company screens out undesirable employees and protects the Company against hiring practices that illegally screen out applicants or disproportionately affect applicants based on age, race, religion, gender, national origin or other similarly protected attributes. I. GOALS AND OBJECTIVES OF A PROPER HIRING PROCESS The Company s hiring process should screen out individuals who will be a detriment to the organization. Applicants who will be detrimental are those individuals who will offend guests, distract other employees, generate litigation, and so forth. These individuals may be identified by the following characteristics: 1. Persons who have a history of unsuccessful employment; 2. Persons who blame their prior failures on others (especially their employers); 3. Persons who appear to be whiners, gripers, and complainers as opposed to people who are flexible; 4. Persons who are less than fully honest about themselves and others; 5. Persons who have likes and dislikes which do not match your work environment; 6. Persons who present a risk of injury to guests, co-workers or others; 7. Persons who will not take pride in their job no matter where they work in the organization; 8. Persons who will not present a positive image to your guests; and 9. Persons who are insubordinate to their superiors. These characteristics are readily identifiable in the hiring process. The procedures described below are designed to help you identify these characteristics so that you are hiring defensively. II. EMPLOYMENT APPLICATION AND RELATED FORMS A. Getting the Forms Filled Out A sample employment application form is included in this guide. The employment application (and Fair Credit Reporting Act forms discussed below) should be completed prior to any interview taking place. Be sure that the applicant completes each section of the application. Do not allow the applicant to refer to a resume or some other document rather than supplying detailed information. Also, be sure that the applicant signs the application. B. Employee Data Reporting Employers with 15 or more employees are required by federal law to keep records and information concerning their employees. In addition, if your Company: (1) employs 100 or more employees, (2) has fewer than 100 employees but is owned or affiliated with another company, or there is centralized ownership, control or management so that the group legally constitutes a single enterprise and the entire enterprise employs a total of 100 or more employees, or (3) employs 1

12 50 or more employees and has federal contracts totaling more than $50,000, then you are required to complete and file a Federal EEO-1 Report with the Joint Reporting Committee by no later than September 30 of each year. The attached Collection of Data for Federal EEO-1 Report Form is provided to assist you with the collection of employee data and preparation of the Federal EEO-1 Report Form. The Collection of Data for Federal EEO-1 Report Form should be completed by the Supervisor at the time of completion of an employment application. The employee completes the top portion by providing his or her social security number, date of birth, sex and race. The Supervisor must then complete the bottom portion of the form by placing an X in the proper box. This document should not be kept as part of any personnel records, but instead should be sent directly to Human Resources and/or others responsible for the completion of the EEO-1 Report Form. If you have any questions about this report, contact Human Resources. Further information regarding the filing of EEO-1 reports for single and multiple establishment employers, including reporting instructions and report forms in various formats, can be obtained by visiting or contacting: Joint Reporting Committee PO Box 779Norfolk VA Phone , Fax III. REFERENCE CHECKS Both personal and professional references should be checked on every applicant. Even though many former employers whom you call may refuse to provide substantive information regarding their former employees, the reference check attempt must be made for at least three prior employers on every applicant you wish to hire. The reference information obtained, or lack thereof, should be recorded on the form included in this guide. IV. DRUG TESTING If your Company has a drug testing policy, then all applicants hired and/or put to work must first receive a clean drug test result from the clinic. All medical information regarding an employee, including drug test results, should be kept in a separate folder which is either stored with the personnel file (if the files are secure ) or in a separate location. V. BACKGROUND INVESTIGATIONS AND REJECTION OF APPLICANT A criminal, driving, and background investigation of an applicant can be a vital tool for employers, especially in the hiring process. They provide useful information that can allow a Company to screen and filter-out problematic applicants before they are hired. Employers are required to comply with the federal Fair Credit Reporting Act ( FCRA ) in conducting background checks on applicants and employees. Included in this guide is 2

13 an Employer s Compliance Guide to the FCRA to assist you in your efforts to comply with the laws in this area. VI. EMPLOYMENT FORMS AND PROCESS After completing all of the steps referenced in the Section above, if the employee is approved for hire, the Company may then extend an offer of employment to the applicant. A. I-9 Compliance Once the applicant has been made an offer of employment by the Company and has indicated his or her acceptance of the offer of employment, Section 1 of the INS I-9 form included in this guide must be filled out by the employee and forwarded to the Human Resources Manager for review and approval BEFORE the Company may permit the employee to begin any work for the Company. If you have any questions regarding these procedures, please contact the Human Resources Manager BEFORE permitting any prospective employee to begin work for the Company. 1. The I-9 form is deceptively easy to complete. The prospective employee completes Section 1 of the form when the employee shows up for the first day of work, which elicits name, address, date of birth, and Social Security number. In addition, the prospective employee must attest to immigration status and the validity of documents presented to establish identity and employment eligibility. The employee then signs and dates the form. The Company is ultimately liable for proper completion of the I-9 form and must ensure that Section 1 of the form is properly completed by the employee. 2. Prospective employees are required to present documents proving identity and employment eligibility within three days of starting employment. Note that some documents prove only identity; some prove only employment eligibility; and some prove both. 3. The Human Resources Manager completes Section 2 of the I-9 form by examining the documents presented by the prospective employee and recording the document numbers and expiration dates in the appropriate column(s) in Section The Human Resources Manager should copy the documents presented by the prospective employee for purposes of proving compliance with verification requirements. Mere copying of documents, however, does not constitute compliance and will result in penalties if the I-9 form is not also properly completed. 5. The Human Resources Manager should complete the date of hire information in the certification after review of the I-9 form and supporting documents have been successfully and acceptably completed. 6. The Human Resources Manager must then sign and date a certification stating that the documents: (1) reasonably appear to be genuine; (2) relate to the individual; and (3) authorize the individual to work. 3

14 B. Employee Withholding Forms Form W-4: Employee Withholding: This form must be given to all employees for purposes of federal income tax withholding. C. Notice of Cobra Rights An Initial Notice of COBRA Rights form must be given to your employees at the time they are hired. In addition, a copy of this Initial Notice of COBRA Rights should be sent to the spouse of a married employee, preferably by registered mail. Most insurance carriers have a Notice of COBRA Rights form tailored to their plan. We recommend that you contact your carrier to obtain the appropriate notice. We have also included a sample Initial Notice of COBRA Rights form. D. Health Insurance and Benefits Information At the time of hire, you should also provide your employees information concerning the Company s health insurance and benefits. This information is often provided to employers by their health insurance companies. E. Employee Emergency Form At the time of hire, the Company should provide to the employee an Emergency Information Form for the employee to complete containing the employee s name, address, and preferably the names, addresses, and contact information for two individuals that may be contacted in case of emergency. This Employee Emergency Form should be placed in the employee s personnel file after it is completed, and should be updated periodically. F. Employee Handbook With Acknowledgment and Receipt Form If you do not already have one in place, we strongly recommend that you implement an employee handbook. A handbook is critical because it provides guidelines to your employees about what they can expect from the company, and can in certain circumstances, protect you against liabilities that may arise from the employment relationship. An Acknowledgment Form should also be executed by the employee at the time the Company provides the employee his or her employee handbook. It provides verification that the employee has received a copy of the employee handbook and agrees to be bound by the policies contained therein. Fisher & Phillips would be happy to assist you in customizing a handbook. 4

15 Employment Application

16 APPLICATION FOR EMPLOYMENT Position Desired: [ ] Part time [ ] Full time [ ] Year round [ ] Seasonal WE ARE AN EQUAL OPPORTUNITY EMPLOYER APPLICANT'S STATEMENT I understand that if I am hired, my employment will be for no definite period, regardless of the period of payment of my wages. I further understand that I have the right to terminate my employment at any time with or without notice, and the Company has the same right. No one other than the President of the Company has authority to modify this relationship or make any agreement to the contrary. Any such modification or agreement must be in writing. I understand that the Company reserves the right to require me to submit to a drug test at any time and also reserves the right to require me to submit to an alcohol test and/or medical examination to the extent permitted by law. I authorize the Company to investigate my driving record, my criminal record and my credit history, and I understand that an investigative consumer report may be prepared whereby information is obtained through personal interviews with neighbors, friends and others with whom I am acquainted. This inquiry would include information as to my character, general reputation, personal characteristics and mode of living. I understand that I have the right to make a written request within a reasonable period of time to receive additional detailed information about the nature and scope of this investigation. I further understand that the Company may contact my previous employers and I authorize those employers to disclose to the Company all records and other information pertinent to my employment with them. I also authorize the Company to provide truthful information concerning my employment with it to my future prospective employers and I agree to hold it harmless for providing such information. I certify that all of the information that I provide on this application and in any interview will be true and accurate. I understand that if I am employed and any such information is later found to be false or misleading in any respect, I may be dismissed. DO NOT SIGN UNTIL YOU HAVE READ AND UNDERSTAND THIS STATEMENT Date Signature of Applicant Name (Print) Last First Middle Present How long have Address you lived there? Street and Number City State Years Months Previous How long did Address you live there? Street and Number City State Years Months Telephone No. Social Security No. Can you work [ ] Overtime? [ ] Weekends? Do you have a shift preference? If so, which shift? Have you ever worked for this Company before? [ ] Yes [ ] No If Yes, please give dates and position: Have you ever pled guilty or no contest to, or been convicted of a felony? [ ] Yes [ ] No If Yes, please give the date(s) and details: Have you ever pled guilty, or no contest to, or been convicted of a misdemeanor resulting in imprisonment within the last five years? [ ] Yes [ ] No If Yes, please give the date(s) and details:

17 Have you been arrested for any matters for which you are out on bail or on your own recognizance pending trial? [ ] Yes[ ] No If Yes, please give the date(s) and details: NOTE: Answering "Yes" to these questions does not constitute an automatic bar to employment. Factors such as when the alleged offense occurred and age at the time of the alleged offense, seriousness and nature of the violation, and rehabilitation will be taken into account. (Do not include minor traffic citations and arrests or convictions which have been sealed or expunged in answering this question.) RECORD OF PREVIOUS EMPLOYMENT Please list the names of your present or previous employers in chronological order with present or last employer listed first. Be sure to account for all periods of time including military service and any period of unemployment. If self-employed, give firm name and supply business references. [Add additional page if necessary] Present or Last Employer Address City, State, Zip Code Telephone Employed From (mo/yr) To (mo/yr) Pay Start $ Final $ Your Title or Position Name and Title of Last Supervisor Exact Reason for Leaving Previous Employer Address City, State, Zip Code Telephone Employed From (mo/yr) To (mo/yr) Pay Start $ Final $ Your Title or Position Name and Title of Last Supervisor Exact Reason for Leaving Previous Employer Address City, State, Zip Code Telephone Employed From (mo/yr) To (mo/yr) Pay Start $ Final $ Your Title or Position Name and Title of Last Supervisor Exact Reason for Leaving Previous Employer Address City, State, Zip Code Telephone Employed From (mo/yr) To (mo/yr) Pay Start $ Final $ Your Title or Position Name and Title of Last Supervisor Exact Reason for Leaving Previous Employer Address City, State, Zip Code Telephone Employed From (mo/yr) To (mo/yr) Pay Start $ Final $ Your Title or Position Name and Title of Last Supervisor Exact Reason for Leaving

18 Have you ever been terminated or asked to resign from any job? [ ] Yes [ ] No If Yes please explain circumstances: Please explain fully any gaps in your employment history: May we contact your current employer? [ ] Yes [ ] No. If No, please explain: Please indicate any actual experience, special training and qualifications that you have which you feel are relevant to the position for which you are applying. Have you ever used another name? [ ] Yes [ ] No Is any additional information relative to change of name, use of an assumed name, or nickname necessary to enable a check on your work and educational record? [ ] Yes [ ] No If yes, please explain: Can you supply proof of eligibility to work in the United States? [ ] Yes [ ] No If hired, can you furnish proof that you are over 18 years of age? [ ] Yes [ ] No Are you capable of satisfactorily performing the essential job duties required of the position for which you are applying? [ ] Yes [ ] No Do you have adequate transportation to and from work? [ ] Yes [ ] No How many days of work have you missed in the last three years due to reasons other than paid holidays and vacation? YEAR NUMBER OF DAYS EDUCATION YEAR NUMBER OF DAYS YEAR NUMBER OF DAYS School Name Years Completed (Circle) Diploma/Degree Describe Course of Study or Major Describe Specialized Training, Experience, Skills and Extra-Curricular Activities Elementary: High School: College/University: Graduate/Professional: Trade or Correspondence: Other:

19 PERSONAL REFERENCES Please list persons who know you well -- not previous employers or relatives Name Occupation Address (Street, City and State) Telephone Number Number of Years Known THIS APPLICATION WILL BE CONSIDERED ACTIVE FOR A MAXIMUM OF THIRTY (30) DAYS. IF YOU WISH TO BE CONSIDERED FOR EMPLOYMENT AFTER THAT TIME, YOU MUST REAPPLY. I CERTIFY THAT ALL OF THE INFORMATION THAT I HAVE PROVIDED ON THIS APPLICATION IS TRUE AND ACCURATE. Date Signature of Applicant ADDITIONAL INFORMATION. Please indicate any actual experience you have in any of the following positions: [ ] Administrative [ ] Sales [ ] Driver [ ] Banquets [ ] Accounting [ ] Server [ ] Recreation [ ] Landscape/Grounds [ ] Front Desk [ ] Housekeeping [ ] Maintenance [ ] Computer Services [ ] Reservations [ ] Cook [ ] Telephone/PBX [ ] Purchasing [ ] Bell staff [ ] Security DRIVING INFORMATION Complete the following if applying for position which requires driving: Do you have a current driver s license? [ ] yes [ ] no State: Lic. No. Expiration Date: Has your driver s license ever been suspended or revoked? [ ] yes [ ] no If yes, please explain circumstances: Have you ever been cited for driving under the influence (DUI) or driving while intoxicated (DWI)? [ ] yes [ ] no If yes, please explain the outcome: Please list all moving traffic violations in the last five (5) years: Offense Date Location Offense Date Location Offense Date Location Offense Date Location

20 Fair Credit Reporting Act Compliance Guide

21 FAIR CREDIT REPORTING ACT TABLE OF CONTENTS Page I. INTRODUCTION...1 A. Increased Applicant and Employee Rights...1 B. What is a "Consumer Report?"...1 C. What is an "Investigative Consumer Report?"...1 D. What if an Employer Obtains Information Directly From Public Records?"...2 II. IMPORTANT DEFINITIONS...2 A "Consumer Report"...2 B. "Investigative Consumer Report"...2 C. "Consumer Reporting Agency"...2 D. "Adverse Action"...3 III. USING CONSUMER REPORTS...3 A. Provide Prior Written Disclosure to the Applicant and/or Employee...3 B. Obtain signed Authorization from the Applicant and/or Employee...3 C. Make the Certification to the Consumer Reporting Agency...4 D. Give Written Notice Before Taking "Adverse Action"...4 E. Give Written Notice After Taking "Adverse Action"...4 F. Special Rule for Workplace Misconduct Investigations...5 IV. USING INVESTIGATIVE CONSUMER REPORTS...6 V. DOT-COVERED EMPLOYEES...6 VI. EFFECT OF STATE LAWS...7 VII. THE COSTS AND PENALTIES OF NON-COMPLIANCE...7 A. Liability...7 B. Limitation on Liability...7 C. Managing Potential Liability...8 APPENDICES 1 DISCLOSURE OF INTENT TO OBTAIN CONSUMER REPORTS OR INVESTIGATIVE CONSUMER REPORTS (AND AUTHORIZATION) 2 CERTIFICATION TO CONSUMER REPORTING AGENCY i

22 3 A SUMMARY OF YOUR RIGHTS UNDER THE FAIR CREDIT REPORTING ACT 4 PRE-ADVERSE ACTION NOTICE 5 ADVERSE ACTION NOTICE 6 RESPONSE TO REQUEST FOR INFORMATION REGARDING INVESTIGATIVE CONSUMER REPORT 7 WARNING MEMO TO EMPLOYEES HANDLING INFORMATION ii

23 FAIR CREDIT REPORTING ACT I. INTRODUCTION Applicant/employee background reports can be vital tools for employers, especially in the hiring process and sometimes during employment. The following pages contain guidelines and sample documents for obtaining and using certain background reports, known as consumer reports in accordance with the Fair Credit Reporting Act ( FCRA ). A. Increased Applicant and Employee Rights Amendments to the FCRA significantly increased the rights of applicants and employees to receive certain disclosures and to choose whether to authorize certain background reports. Given the increase in litigation over privacy interests, employers (as well as their attorneys and investigators) are well-advised to pay close attention to the detailed requirements of the FCRA. B. What is a Consumer Report? An employer triggers FCRA obligations when it requests a consumer report, a term which includes a broad category of reports from a consumer reporting agency containing any information "bearing on a consumer s credit worthiness, credit rating, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living. Reports such as driving records, criminal records, credit reports, and many other reports normally constitute consumer reports when an employer obtains them for employment purposes from a third-party, consumer reporting agency such as a credit-reporting company, an insurance company, or an investigative firm. C. What is an Investigative Consumer Report? A special subset of consumer reports, called investigative consumer reports, contain information obtained by a consumer reporting agency through personal interviews with neighbors, friends, associates, acquaintances, or others with knowledge of the consumer. For example, an investigative consumer report could include a report prepared by an investigator who interviews an applicant s former employers on behalf of the prospective employer. If an employer intends to obtain an investigative consumer report, the FCRA imposes additional disclosure requirements in addition to all of the requirements that apply to ordinary consumer reports. D. What if an Employer Obtains Information Directly from Public Records? Sometimes employers themselves go directly to original governmental sources to obtain records (such as department-of-motor-vehicles records, local or state criminal records, courthouse records, etc.). Based upon recent informal opinions of staff attorneys at the Federal Trade Commission ( FTC ), as well as a few older court decisions, reports obtained in this manner are not FCRA-covered consumer reports (although there is a slight risk of a contrary interpretation by the FTC based on an early, informal FTC guideline which we have questioned before the FTC without receiving a formal answer). On the other hand, if an employer retains a third party to obtain and evaluate reports for employment purposes, the third party who goes to governmental sources 1

24 for such reports will normally be considered a consumer reporting agency providing consumer reports. II. IMPORTANT DEFINITIONS The Fair Credit Reporting Act defines many key terms in the text of the statute itself. A. Consumer Report The term consumer report means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used, or collected in whole or in part, for the purpose of serving as a factor in establishing the consumer s eligibility for (A) credit or insurance to be used primarily for personal, family, or household purposes; (B) employment purposes; or (C) any other purpose authorized in the FCRA. B. Investigative Consumer Report The term investigative consumer report means a consumer report or portion thereof in which information on a consumer s character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on, or with others with whom he is acquainted or who may have knowledge concerning any such items of information. C. Consumer Reporting Agency The term consumer reporting agency means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports. D. Adverse Action For employment purposes, the term adverse action means a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee. III. USING CONSUMER REPORTS For employers using consumer reports, the FCRA requires the following steps: A. Provide Prior Written Disclosure to the Applicant and/or Employee. The disclosure of intent to obtain reports must be a stand-alone document containing only this disclosure, but it may also include a section for the applicant s or employee s authorization. (See attached sample Disclosure of Intent to Obtain Consumer Reports or Investigative Consumer Reports and Authorization at Appendix 1). The 2

25 disclosure must tell the applicant/employee that a consumer report or an investigative consumer report may be obtained for employment purposes. The attached disclosure document covers both consumer reports and investigative consumer reports, and it offers the applicant/employee the opportunity to request additional information regarding the nature and scope of an investigation if the employee checks the appropriate box. For hiring purposes, employers should give this document to applicants along with the employment application. This document may also be given to current employees, and it is designed to be usable for multiple reports over time. B. Obtain Signed Authorization from the Applicant and/or Employee. The employer must obtain the applicant s or employee s signed authorization before requesting either a consumer report or an investigative consumer report. For convenience, we combined this authorization with the disclosure described in Step A, above. See, Disclosure of Intent to Obtain Consumer Reports or Investigative Consumer Reports and Authorization (Appendix 1). C. Make the Certification to the Consumer Reporting Agency. An employer must certify to the consumer reporting agency that the employer follows proper procedures and uses the reports only for employment purposes. An employer may send a consumer reporting agency a single certification to cover all future reports requested for employment purposes. Most consumer reporting agencies will provide employers with a certification form, however, we attach a recommended certification at Appendix 2. D. Give Written Notice Before Taking Adverse Action. Before taking an adverse action (such as not hiring the applicant) based in whole or in part on information contained in a consumer report, an employer must give the applicant or employee the following documents: A copy of the consumer report or investigative consumer report A copy of the Summary of Your Rights Under The Fair Credit Reporting Act (copy included in Appendix 3). The FCRA does not require a cover letter for this step, but we recommend that you use a cover letter to provide some explanation and a written record. Appendix 4 contains a suggested Pre-Adverse Action Notice for this purpose. An employer must provide the report and the Summary of Rights to the applicant or employee a reasonable period of time before actually taking adverse action. A reasonable period of time depends on the circumstances including such factors as 3