New Worker-Friendly Laws Put Employers On Notice

Thursday, November 1, 2007 - 01:00

New York has become the latest state to pass new worker-friendly laws, joining a number of others across the country in enacting and amending a spate of laws addressing a variety of workplace issues.These new laws, generally, focus on the payment of wages and time-off and reflect a growing national trend that is expanding employees' rights in the workplace around the country, which should be of importance to in-house counsel in all sectors.Prudent employers must consider the effect of these new enactments on their pay and leave practices and take action to ensure compliance.

Following one of the most active legislative periods in recent times, New York now requires that employers provide time-off during the work-day for nursing mothers who wish to express breast milk at work, joining 13 other states including California, Connecticut, and Illinois that have similar laws requiring accommodations for nursing mothers in the workplace.As a result, employers are well-advised to designate an appropriate room for these purposes, designate a refrigerator to ensure cold milk storage, and may want to create a policy to accommodate nursing mothers.Also afforded new protection are employees who wish to donate blood - a new amendment to New York Labor Law ("NYLL") requires that an employer with more than 20 employees must grant three hours leave in any 12-month period to any employee who works 20 or more hours per week and seeks to donate blood. Equally significant, to ensure that time-off provisions already on the books are enforced, New York has amended the Labor Law providing for new civil penalties against employers who fail to afford employees statutorily required meal and rest breaks, in addition to the criminal penalties that already exist but have suffered from lax enforcement.

New York has also enacted laws affecting the manner in which workers are paid, which will likely impact most businesses that have employees working in the state.By raising the wage threshold for exemption from Article 6 ("Payment of Wages") of the NYLL, a larger number of employees ( e.g. , those earning less than $900/week) now: (i) must be afforded the opportunity to consent before being paid through direct deposit, and (ii) can sue under Section 198 of the NYLL when their employer fails to timely provide wages, benefits, or wage supplements.In addition, the law now requires that the terms of compensation of a commissioned salesperson be memorialized in a writing signed by the employee and the employer, and that in the absence of such a writing, in any action for unpaid wages, it will be presumed that the terms of employment, including understandings as to when/how commissions are earned and paid, are as described by the commissioned salesperson.Given the repercussions associated with a failure to reduce to writing the compensation arrangement of a commission salesperson, employers need to know what types of payments constitute a "commission", when is an employee a "Commission Salesperson" subject to Section 191(c) of the NYLL, and what to do about it.Employers also need to understand how the change in the wage threshold affects their exposure to wage lawsuits arising under the NYLL.

Although the amendments concerning the wage threshold and commission salespersons, at first blush, seem easy to follow, as in most cases under the NYLL, all is not as it seems.Often ambiguous, and sometimes internally inconsistent, the NYLL and the case law interpreting it, sometimes raise as many questions as they answer.Determining who is a commission salesperson subject to the amendment and exactly what the change in the wage threshold mean for employers are no exception.As the courts in New York inevitably wrestle with these questions, businesses across the country will take note and watch closely as these issues are vetted.In-house counsel would be wise to do the same.

In the meantime, just as the New York Legislature is the latest to effect changes in the workplace, improving and increasing worker protections and subjecting employers to increased civil penalties for infractions thereof, others may well follow.Employers are well-advised to review their policies and practices to ensure compliance where required and to begin anticipating additional changes likely to follow as Congress wrestles with a host of laws designed to expand employee protections, including amendments to the Americans with Disabilities Act, the Family and Medical Leave Act, and the WARN Act, as well as legislation designed to end discrimination on the basis of sexual orientation (the Employment Non-Discrimination Act).