New York Employment Law Update

Transcription

1 Recent Legislative Developments in New York State Regarding Reductions in Force and Criminal Conviction Records SUMMARY A number of new New York State statutes of significance to employers will soon become effective. The new laws address the subjects of reductions in force and the employment of individuals with criminal convictions. Plant Closings and Mass Layoffs. New York s Governor David Paterson recently signed into law the New York State Worker Adjustment and Retraining Notification Act ( NY WARN Act ), which becomes effective on February 1, Like the federal Worker Adjustment and Retraining Notification Act ( federal WARN Act ), the NY WARN Act requires certain private employers to provide notice to their employees before specified plant closings or mass layoffs. Although the NY WARN Act closely tracks the language of the federal WARN Act, it also imposes additional requirements on employers by expanding the circumstances in which notice must be given and increasing the amount of notice that must be given. Criminal Conviction Records. To encourage the hiring and retention of ex-offenders, New York State amended its Human Rights Law to help shield those who employ individuals with criminal histories against negligent hiring and retention lawsuits. In addition, amendments to New York s General Business Law and Labor Law were enacted that require that notices be given to applicants and employees of the employment rights of those with a criminal conviction record. NEW YORK WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT With the enactment of the NY WARN Act (Article 25-A of the New York Labor Law), New York joins a growing number of states that have enacted legislation to supplement the federal WARN Act and expand the scope of the notice rights it affords. The NY WARN Act, like the federal Act, requires that notice be New York Washington, D.C. Los Angeles Palo Alto London Paris Frankfurt Tokyo Hong Kong Beijing Melbourne Sydney

2 given to employees before a mass layoff, plant closing, 1 or relocation of operations. The NY WARN Act amplifies the federal Act in the following respects: (i) it applies to businesses that employ at least 50 fulltime employees, whereas the federal WARN Act applies only to employers of at least 100 full-time employees; (ii) it defines a mass layoff requiring notice as constituting the termination of as few as 25 employees (as opposed to the minimum of 50 employees under the federal WARN Act) who represent at least 33% of the workforce at a single site of employment; (iii) it applies to plant closings that affect at least 25 employees, as opposed to 50 employees under the federal WARN Act; (iv) unlike the federal WARN Act, it requires notice of relocations of 50 or more miles in addition to plant closings and mass layoffs; and (v) when it applies, it requires 90 days notice to affected employees, their representatives, the New York State Department of Labor, and the local workforce investment boards, rather than 60 days as required by the federal WARN Act. Notwithstanding that the new statute requires 90 days notice, the penalties for violations may not exceed the maximum penalties for which the employer would be liable under the federal WARN Act for the same violation (i.e., 60 days of back pay and benefits). In addition to empowering the New York Commissioner of Labor to enforce the Act, the new statute provides employees with a private cause of action. Like the federal WARN Act, the NY WARN Act provides exceptions to the 90 day notice obligation: (i) if the employer was actively seeking capital or business that would have avoided the need for the reduction in force and reasonably believed that giving notice would have precluded the employer from obtaining capital; (ii) if the need for notice was not reasonably foreseeable; (iii) if the employees were hired with the understanding that the work would be temporary; (iv) if the reduction in force is due to natural disaster or act of terrorism; or (v) if the reduction in force is due to a labor strike or lockout. The NY WARN Act does not go into effect until February 1, The New York State Department of Labor has confirmed that the Act does not apply to layoffs that occur before that date. 1 In what appears to be a drafting error, the NY WARN Act states that [a]n employer may not order a mass layoff, relocation, or employment loss, unless, at least ninety days before the order takes effect, the employer gives written notice.... N.Y. Lab. Law 560-b (emphasis added). Read literally, this language would lead to the unintended conclusion that an employer would be required to provide notice before any employment loss, even if only one employee were affected. The New York State Department of Labor has taken the position that, when the various provisions of the Act are read in harmony, it is clear that an employer is only required to provide a WARN notice where at least 25 of its employees would suffer an employment loss or relocation as the result of a planned plant closing or mass layoff. -2-

3 PROTECTION FROM CERTAIN TORT CLAIMS FOR EMPLOYERS OF EX- OFFENDERS On September 4, 2008, Governor Paterson signed into law an amendment to the New York Human Rights Law that affords additional protection to employers who employ individuals with criminal conviction records. N.Y. EXEC. L The amendment, which went into effect immediately, creates a rebuttable presumption in favor of excluding from evidence the prior incarceration or conviction of any person, in a case alleging that the employer has been negligent in hiring or retaining an applicant or employee..., if after learning about an applicant or employee s past criminal conviction history, such employer has evaluated [the Article 23-A] factors..., and made a reasonable, good faith determination that such factors militate in favor of hire or retention of that applicant or employee. In other words, an employer who hires ex-offenders in the manner encouraged by the law but who is later sued for negligent hiring or retention of such an individual has the advantage of a presumption that the fact of that conviction should be excluded from evidence in the suit. Article 23-A of the New York Correction Law is the principal statute dealing with employment of exoffenders. It prohibits private employers of ten or more employees from refusing to hire applicants on the basis of their past criminal convictions, unless the employer determines that, (i) the applicant s criminal conduct directly relates to the responsibilities of the employment sought, or (ii) employing the individual would create an unreasonable risk to property or to the safety of others. N.Y. Correct. L In making these determinations, an employer must consider several factors, including: the public policy of encouraging the employment of persons previously convicted of crimes, the specific duties and responsibilities necessarily related to the employment sought, the bearing the crime for which the person was previously convicted will have on his fitness or ability to perform those duties or responsibilities, the time which has elapsed since the occurrence of the criminal offense, the age of the person at the time of occurrence of the criminal offense, the seriousness of the offense, any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct, and the legitimate interest of the private employer in protecting property, and the safety and welfare of others. N.Y. Correct. L The State Human Rights Law provides that it is unlawful for an employer to deny employment to any person because of a finding that the applicant or employee lacks good moral character based on a prior conviction, unless such denial is permitted by Article 23-A of the Correction Law. The recent amendment therefore is designed to encourage employment of ex-offenders by providing assurances to employers that they will have some protection in a negligent hiring or retention suit. -3-

4 ADDITIONAL NOTICE REQUIREMENTS REGARDING THE RIGHTS OF EMPLOYEES WITH CRIMINAL CONVICTION HISTORIES In another effort to encourage employment of those with conviction records, on August 5, 2008, New York State amended its General Business Law and Labor Law relating to background checks and notice to applicants and employees of their rights. Under the new amendments, when a background report received by an employer concerning an applicant or employee contains criminal conviction information, the employer must provide to the applicant or employee who is the subject of the report a copy of Article 23-A of the New York Correction Law, which, as explained above, governs the employment of persons previously convicted of one or more criminal offenses. Further, an employer who requests an investigative consumer report (a more detailed type of background report) in connection with an offer of employment must provide to the prospective employee a copy of Article 23-A at the outset, along with the required notice that an investigative consumer report was requested. In addition, the Labor Law was amended to require that all covered employers must post in the workplace a copy of Article 23-A in a place accessible to his or her employees and in a visually conspicuous manner. All three notice requirements take effect on February 1, * * * Copyright Sullivan & Cromwell LLP

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