Developments and Trends in New York Employment Law

Transcription

1 BS&K Developments and Trends in New York Employment Law HR Legislative Conference April 12, 2011 John M. Bagyi, Esq., SPHR Bond, Schoeneck & King, PLLC Attorneys At Law Since Washington Avenue Albany, NY Telephone: (518)

2 JOHN M. BAGYI, Esq., SPHR An attorney and certified Senior Professional in Human Resources, John counsels and represents employers of all types and sizes in a variety of labor and employment-related contexts, including policy development and review, wage and hour compliance, workplace investigations, employment litigation, arbitrations, union organizing campaigns, strikes and picketing, and proceedings before the National Labor Relations Board, the Division of Human Rights and the EEOC. John is also uniquely qualified to train executives, managers, and employees on employment law and human resource topics. John has written extensively on labor and employment law topics and is a frequent speaker at national, state and local conferences, including the 2008 National SHRM Conference. He has also served as a guest lecturer at Albany Law School, RPI, and the School of Business at the University at Albany. In 2007, John was the youngest lawyer in New York State listed in The Best Lawyers in America for Labor and Employment Law. John is also listed in the Corporate Counsel Edition of Super Lawyers, and the Upstate Edition of New York Super Lawyers. John is a graduate of the University at Albany and magna cum laude graduate of Albany Law School, where he served as an Executive Editor of the Albany Law Review. He is admitted to practice in the State of New York, the Commonwealth of Massachusetts, and the United States Supreme Court. Honors and Awards Super Lawyers, Corporate Counsel Edition, present New York Super Lawyers, Upstate Edition, present The Best Lawyers in America 2007-present Who s Who in America Who s Who in Emerging Leaders Excellence in Alumni Service Award, Albany Law School, Under Forty Honoree, Capital District Business Review, 2004 Associate Member of the Year, New York State Association of Health Care Providers, 2003 Justinian Honor Society Community Involvement Founder and Facilitator, CRHRA HR Leadership Program, 2006-present General Counsel, New York State Society for Human Resource Management, 2005-present Founder and Facilitator, CRHRA/BS&K HR Executive Briefing Series, 2004-present Executive Committee, National Alumni Association, Albany Law School, Co-Chair, Capital Leadership Steering Committee, Albany-Colonie Chamber of Commerce, Board of Directors, Capital Region Human Resources Association, Washington Avenue Albany, NY Direct: Fax: jbagyi@bsk.com Web: Prior results do not guarantee or predict a similar outcome with respect to any future matter.

3 1 Funeral Leave for Same Sex Committed Partners Effective October 29, 2010 Any employer who provides its employees funeral or bereavement leave for the death of an employee s spouse or the child, parent or other relative of the spouse, must provide the same leave to an employee for the death of the employee s same-sex committed partner or the child, parent or other relative of the committed partner. (Same-sex committed partners are those who are financially and emotionally interdependent in a manner commonly presumed of spouses.) Take Away review policies on funeral and bereavement leave and revise accordingly. Deductions from Wages NY Labor Law prohibits employers from making deductions from an employee s wages, except: those made in accordance with law (taxes, Social Security, etc.); or those authorized by the employee, in writing, for the benefit of the employee (cont d) 2 1 Bond, Schoeneck & King, PLLC 2011

4 Deductions from Wages Limited to: payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization, and similar payments* * Note : The amount of similar payment deductions which may be made for the benefit of the employee is capped at no more than, in the aggregate, 10% of the employee s gross wages for the pay period. 3 Authorized Wage Deductions NYS DOL now narrowly interprets similar payments. Does not include deductions for: Purchases in employer run cafeteria Repayment of loan to employee Personal use of company-provided cell phone Repayment of tuition assistance Recouping overpayment of wages Permits deductions for: 401(k) loan repayment Take Away Review wage deduction practices and modify as necessary to conform to DOL interpretation. 4 2 Bond, Schoeneck & King, PLLC 2011

5 What Do You Do If You Accidently Overpaid an Employee? The DOL now takes the position that you may NOT deduct overpayments from future wage payments even with the employee s consent. You MAY ask an employee to pay the money back You MAY not threaten the employee with discipline for failure to pay back the money. In fact, the NYS DOL states that the employer must clearly communicate that the employee s refusal will not result in discipline or other retaliatory action. You MAY also sue the employee. 5 Recovering Overpayments of Wages Take Aways Try not to over pay wages. Do not deduct overpayments from future wages. Do not threaten discipline or retaliation when asking the employee to repay the overpayment. Feel free to sue the employee when he/she does not repay (you won t need to threaten other employees in the future ) 6 3 Bond, Schoeneck & King, PLLC 2011

6 Wage Theft Prevention Act 7 Background Expands the NYS DOL s enforcement powers and significantly increases employers potential liability for violations of the labor law. Effective April 9, Bond, Schoeneck & King, PLLC 2011

7 Written Notice Provisions (Section 195) Notice required at the time of hire and annually on or before February 1 of each subsequent year. DOL Guidance: The annual notice requirement CANNOT be satisfied by giving notice at some other point in the year (e.g., when annual increases are implemented). Employers must issue annual notices even if there have been no changes. 9 Written Notice Provisions (Section 195) Required information: rate of pay, overtime pay rate, pay day, basis of pay (hour, shift, week, salary, commission, piece, etc.), allowances (if any), the name, address and telephone number of the employer and any DBA plus any other information the Commissioner deems material and relevant Bond, Schoeneck & King, PLLC 2011

8 DOL Guidance If employees are paid at multiple hourly or piece rates, the notice should disclose the all the rates that may apply (either on the notice itself or on an attached sheet). The Department backed off its prior position that notices issued to exempt employees must specify the exemption that applies to the employee. The Department now states that employers "may state the specific exemption that applies," but are not required to. 11 WTPA Templates The Department issued notification templates for the following groups of employees: Hourly rate employees Multiple hourly rate employees Employees paid a weekly rate or a salary for fixed number of hours (40 or fewer in a week) Employees paid a salary for varying hours, day rate, piece rate, flat rate, or other non-hourly basis Prevailing rate and other jobs Exempt employees 12 6 Bond, Schoeneck & King, PLLC 2011

9 13 DOL Guidance Employers are NOT required to use the DOL-issued templates and can develop their own, as long as the employer-prepared notices contain all the required information. The Department expressly "reserves the right to require use of DOL forms in the future, if employer notices do not meet the requirements." While the Department states that the New Hire Notice may be "included in" letters and/or employment agreements provided to new hires, the notice itself must "be on its own form." (cont d) DOL Guidance Notices may be given electronically but there must be a system for the employee to acknowledge receipt of the notice and print out a copy of the notice Bond, Schoeneck & King, PLLC 2011

10 Dual Language Requirement Employers have to provide this notification in English and in the employee s primary language; The Commissioner has established dual-language templates in Chinese, Haitian-Creole, Korean, Polish, Russian and Spanish. 15 Written Acknowledgment Employers must obtain signed and dated written acknowledgement each time notice given and retain it for six years. DOL Guidance: If an employee refuses to sign the acknowledgment, the Department advises that "the employer should still give the notice and note the worker's refusal on its copy of the notice." 16 8 Bond, Schoeneck & King, PLLC 2011

11 Notice of Change Employers must provide written notice to employees when a change is made to any of the information on the 195 notice within seven calendar days prior to such change. This obligation is satisfied if such change is indicated on the employee s subsequent wage statement. DOL Guidance: Except for hospitality industry employers, a separate notice is not required when there is an increase in an employee's pay rate, if the increase is reflected on the corresponding wage statement. For any reduction in pay rate, the employer must notify the employee in writing before the reduction is implemented. 17 Failure To Provide Notice (Section 195) If notice is not provided within 10 business days of the employee s first day of employment, employee may bring a civil action for damages. $50 for each work week that the violation occurred, not to exceed $2,500, together with costs and attorneys fees. Commissioner may also bring a legal action. Same weekly damages. No maximum penalty Bond, Schoeneck & King, PLLC 2011

12 Wage Statements (Section 195(3)) WTPA requires employers to provide even more information with each payment of wages: The dates of work covered by that payment; Name of the employee and employer; Address and phone number of employer; Rate(s) of pay and basis thereof (e.g., whether paid by the hour, shift, week, salary, commission, etc.); Gross and net wages; Deductions; and Any allowances claimed as part of the minimum wage. (cont d) 19 Wage Statements (Section 195(3)) For each non-exempt employee, the following must also be provided: Regular and overtime hourly rate(s) of pay Number of regular and overtime hours worked Employees paid a piece rate: Applicable piece rate or rates of pay Number of pieces completed at each piece rate Upon employee request, employers must provide a written explanation of how wages were computed. Employers must retain these payroll records for six years Bond, Schoeneck & King, PLLC 2011

13 DOL Guidance If a retroactive wage increase is implemented, the amount of the retroactive increase must be separately noted on the wage statement in the period in which it is paid. Wage statements may be provided electronically, if employees can access and print their statements on a computer provided by the employer. The Department will prepare a sample wage statement showing the types of entries which may be necessary, but has not said when it will do so. 21 Failure To Provide Pay Statements (Section 195(3)) Employees have a civil cause of action. Shall be awarded damages of $100 for each work week the violation occurred, not to exceed $2,500, together with costs and reasonable attorneys fees. Commissioner may also bring legal action. Same weekly damages. No maximum penalty Bond, Schoeneck & King, PLLC 2011

14 New Remedies Under the WTPA Failure to Pay Wages, Benefits & Wage Supplements May bring administrative or civil action to recover penalties and collect unpaid wages, benefits, and wage supplements. 100% of underpayment as liquidated damages for violations (same good faith defense applies). Additional double damages civil penalty for willful or egregious or repeat violations. May impose automatic 15% in additional damages due and owing after 90 days from final order to comply. May require defaulting employers to provide or amend an accounting of assets (bank accounts, A/R, personal property, real property, automobiles, etc.). May impose $10,000 civil penalty for failing to furnish an accounting. 23 Notice Of Employer Violations The Commissioner has the power to post and/or affix a notice in an area visible to employees summarizing the employer s violations for nonpayment of wages or violations under the minimum wage act. Notice may last for up to 1 year. If the violation is willful, the Commissioner now has the power to post and/or affix a notice describing the violations in an area visible to the general public. Notice under this provision may last up to 90 days Bond, Schoeneck & King, PLLC 2011

15 Retaliation Along with employers, corporations, limited liability companies, and partnerships, any other person is now prohibited from discharging, threatening, penalizing, or in any other manner discriminating against any employee for engaging in certain protected activities. (cont d) 25 DOL Guidance Employees are protected from retaliation if they complain to their employer, the Department, or the Attorney General about a possible labor law violation. If employees believe in good faith that "there is a problem in the workplace, their activities are protected," even if the employer has not actually violated the labor law. Even threatening an employee can be considered retaliation Bond, Schoeneck & King, PLLC 2011

16 Retaliation - Penalties DOL Investigation: the Commissioner may order an employer or any person to pay a civil penalty of $1,000 - $10,000; Civil Action: an employer or any person may be ordered to pay liquidated damages of up to $10,000 along with costs and reasonable attorney s fees. Persons or entities would also be guilty of a class B misdemeanor. 27 Wage Theft Prevention Act Take Aways Review Pay Practices and Come Into Compliance NOW Classification of Employees Exempt/Non-Exempt classifications Independent Contractor classifications Improper Deductions/Docking Recordkeeping Posters (cont d) Bond, Schoeneck & King, PLLC 2011

17 Wage Theft Prevention Act Take Aways Paying for All Hours Worked Preliminary and postliminary work Off-site work Overtime/Misuse of compensatory time Training Time Travel Time Meal Periods Waiting Time/On-Call Working Off-The-Clock Regular Rate Calculations 29 Other NYS Developments Bond, Schoeneck & King, PLLC 2011

18 Wage Rule for the Hospitality Industry Effective January 1, 2011 Applies to all NY restaurants and hotels 31 Increased hourly wages for tipped employees Employees must now be notified in writing of any tip credits that are taken against the minimum wage Domestic Workers Bill of Rights Effective November 29, 2010 Grants domestic workers: overtime pay 1 day of rest every 7, and NYHRL protection Construction Industry Fair Play Act Effective October 26, 2010 Intended to curb employee misclassification in the construction industry Construction workers are presumed to be employees (as opposed to independent contractors) unless the employer can satisfy certain criteria Violations may result in civil penalties ranging from $2,500 - $5,000 and criminal punishment of up to 60 days in jail and $50,000 in fines Bond, Schoeneck & King, PLLC 2011

19 Register Now for BS&K s Workplace 2011 Annual Statewide Conference For HR Professionals Albany: June 14, 2011, The Desmond Saratoga Springs: May 20, 2011, The Saratoga Hilton Topics to Include: Labor & Employment Law Update Health Care Reform The New NLRB Wage & Hour Issues Navigating a Charge of Discrimination at the SDHR & EEOC Hiring & Recruitment Workplace Leave Issues Protecting Employers Proprietary Information / Managing the Electronic Workplace 33 Keep in Touch LinkedIn Bond, Schoeneck & King, PLLC 2011

20 All rights reserved. This presentation may not be reprinted or duplicated in any form, without the express written authorization of John M. Bagyi, Esq., SPHR Bond, Schoeneck & King, PLLC 2011