New York employers should be aware of recent amendments to New York’s Labor Law that may require them to revise their employment policies and procedures.
New York employers should be aware of recent amendments to New York’s Labor Law that may require them to revise their employment policies and procedures. One significant amendment, which takes effect October 16, 2007, requires employers to put in writing the terms of employment for commissioned salespeople or risk an adverse presumption in any wage action brought against the employer. See Section 191 of the New York Labor Law. This change in the state labor law is part of an effort to address difficulties the New York Department of Labor has experienced in investigating wage payment claims for commissions in the absence of a written agreement detailing the terms of employment.
The amendment requires that both the employer and employee sign the terms of employment. If the employer subsequently fails to produce this writing to the Department of Labor when requested in a wage claim investigation, the terms alleged by the commissioned salesperson will be presumed to be the terms of employment.
Terms of employment include:
How wages, salary, commissions, draw against commissions, if any, and all other monies earned and payable will be calculated.
When a commission payment will be earned and when it will be payable.
How often a recoverable draw will be reconciled.
What will be payable to the commissioned salesperson in the event of a termination of the employment relationship, whether by the employer or the salesperson.
The employer must retain a copy of the written agreement for at least three years.
Increased Wage Requirement for Clerical and Other Workers
The amendment also increases the salary threshold for employees classified as “clerical and other workers” under Section 190(7) of the New York Labor Law. Under the current version of this provision, executive, administrative and professional employees who earn more than $600 per week fall outside the definition of “clerical and other worker,” and thus are not entitled to benefit and wage supplement payments as set forth in Article 6 of the New York Labor Law. However, effective January 14, 2008, employers will be required to pay such employees at least $900 per week to be exempt from the benefit and wage supplement requirements in Article 6. This amendment does not affect the requirement that executive, administrative and professional employees be paid at least $536.10 per week to be exempt from New York’s overtime requirements.
The new law also requires that, effective January 14, 2008, employers must obtain the consent of executive, administrative and professional employees who earn less than $900 per week before subjecting these employees to a direct deposit requirement. Currently, the law requires the consent of such employees who earn less than $600 per week before requiring direct deposit.
The recent amendments also add the potential of civil monetary penalties to the existing criminal penalties for violations of the state’s rest and meal break requirements, as set forth in Sections 161 and 162 of the New York Labor Law. This amendment is effective immediately and means that employers may be subject to civil fines of up to $1,000 for the first violation, $2,000 for the second violation and $3,000 for third and subsequent violations.
Other Changes that May Impact New York Employers
Other changes that may impact New York employers include an expansion of the prohibition on inquiries into an applicant’s criminal background. Effective November 1, 2007, employers are prohibited from inquiring into or making an adverse employment decision based on an applicant’s or employee’s criminal conviction, when the conviction record has been sealed or when the conviction is classified as a youthful offender adjudication. Certain exceptions apply to this law.
Additionally, New York recently enacted laws that require employers to provide a place for nursing mothers to express breast milk while at work and require certain employers to provide employees with a three-hour leave of absence to donate blood. (For more information on these laws, please see our September 18, 2007 Legal Alert, available at http://www.fordharrison.com.)
If you have any questions regarding these laws or other New York labor or employment related issues, please contact the Ford & Harrison attorney with whom you usually work or any attorney in Ford & Harrison’s New York office, 212-453-5900.