New Workplace Laws and Regulations – 2011

There are a number of new laws and regulations with which employers in New York must comply involving wages, commissions, independent contractors, tips, domestic workers, funeral leave, family medical leave, retaliation, genetic information and victims of domestic violence. Additionally, the federal and state Departments of Labor as well as other federal and state agencies have announced increased enforcement and penalties for wage hour and employment law violations.

As a result of these new laws and regulations, as well as enhanced enforcement by government agencies, employers should review, update and/or revise employee compensation, job classifications, job descriptions, handbooks, employment policies, employment agreements, notices, time records, and postings to ensure compliance with these new laws and to avoid liabilities and penalties.

Several of these new laws and regulations are briefly summarized below.

New York Wage Theft Prevention Act

Effective April 12, 2011 — New State law requires employers to provide written notice to employees within 10 days of hire and by February 1 of each following year of certain wage and related information. Such notices must include the rate of pay, overtime rate, allowances, deductions, exempt or non-exempt status, regular payday, name of employer, employer doing business names and address and phone number of the employer.

The notices must be provided in English and the primary language of the employee. The notices must also be signed by the employee and must be maintained by the employer for 6 years. Additional notice is required 7 days prior to any changes of information in the wage notice unless the changes are reflected in the employee’s pay stub.

The statute provides for civil penalties, liquidated damages of up to 100% or more of the wages owed, prejudgment interest, attorneys’ fees, personal liability and criminal liabilities.

Wage Deductions

Recent New York State Department of Labor opinions further restrict the types of deductions permitted from wages of employees in New York. Section 193 of the New York Labor Law provides that any wage deductions must be authorized in advance in writing by employees, and the deductions must be for the benefit of employee.

According to certain recent New York Department of Labor opinions, deductions from employee wages in New York are not permitted for repayments of loans or advances, overpayments, tuition, damages or lost property, even if previously authorized in writing by the employee. Additionally, no adverse employment action can be taken against an employee who objects to improper deductions from their wages.

Dodd Wall Street Reform and Consumer Protection Act

New federal law provides for enhanced whistleblower protections and payments to employees who report wrongdoing regarding SEC enforcement actions. This new federal law also contains broad anti-retaliation provisions against whistleblowers, limits waivers of these types of claims, and invalidates certain predispute arbitration agreements regarding these issues.

New York Funeral Leave

New New York State law requires that committed same sex partners in New York be eligible for the same funeral or bereavement leave that other employees receive for deaths of spouses or family members.

New York Domestic Bill of Rights

New New York State law effective November 29, 2010 amends various New York Labor Laws to provide for overtime, paid time off, statutory benefits, days of rest and anti-harassment protections for domestic workers employed in a home or residence.

New GINA Regulations

New regulations by EEOC interpreting the Genetic Information Nondiscrimination Act limit the collection and disclosure of genetic information and family medical histories of employees. Also, these regulations impose notice and recordkeeping requirements on employers regarding genetic information or family medical histories of employees.

Family Medical Leave Act Regulations

U.S. Department of Labor regulations clarify active duty and caregiver leaves for military families. Regulations also expand employer notice requirements for FMLA leaves and modify content and timing of medical certifications and fitness for return to duty certifications for FMLA leaves.

New York State Human Rights Law

New York State Human Rights Law provides for expanded damages, remedies and penalties for violations of New York Human Rights Law as well as new protections for victims of domestic violence.

New York State Construction Industry Fair Play Act

This new law effective October 26, 2010 creates a presumption that individuals who perform services for contractors in the construction industry are employees and not independent contractors unless the employer can establish and meet strict tests. (See Rivkin Radler New York Employment Law Bulletin – November 2010.)

The federal and state Department of Labor have also announced enhanced enforcement and penalties for other employer misclassifications of employees as independent contractors.

Hospitality Industry Minimum Wage Order Revised

This new New York State regulation, effective January 1, 2011, requires hourly pay for all non-exempt persons (except commissioned salespersons) employed in restaurants and hotels and increased hourly pay for tipped employees.

The revised wage order also requires written notices of allowances; new rules regarding tip pooling and service charges; increased minimum wages for tipped employees and no tip credits for certain employees. (See Rivkin Radler Employment Law Bulletin November 2010).

Increased Enforcement by Government Agencies

Federal and state Departments of Labor have also announced that in 2011 they are targeting certain industries for compliance and audits, including health care, restaurants, car washes, landscaping and construction. Similarly, U.S. Immigration and Customs Enforcement announced a crackdown on I-9 compliance and eligibility to work documents for 2011.

Further, the EEOC, OSHA, NLRB and OFCCP have announced increased enforcement, remedies and penalties in 2011 for violations of the labor and employment statutes and regulations for which they are responsible. Additionally, discrimination and retaliation charges filed with the EEOC reached a record last year.

New ERISA Rules and Proposed Rules

The US Department of Labor has proposed a rule to broaden the definitions of fiduciaries under ERISA to include persons who provide investment advice to employee retirement plans and plan participants for a fee or other compensation.

The Department of Labor also issued a final rule which requires new disclosures to participants of plan operating expenses, investment-related operating expenses and fees for each investment option.