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SIGNIFICANT AMENDMENTS TO NEW YORK’S EMPLOYMENT LAWS
Many clients of the TKD labor and employment group have asked our attorneys to “keep them posted” on significant laws, amendments and employment trends. In response, we are now launching a series of email communications titled, “The TKD Employment Advisor.” If you do not wish to receive these types of e-mails in the future, you can unsubscribe by clicking the link at the bottom of this message.
Our intention is not to clutter your inbox with lengthy articles, but rather to provide you with an overview of matters that may be of significance to you and your business. These e-mails are intended as general alerts and are neither a solicitation for business nor should they be relied on as legal advice.
Written Consent Now Required For Direct Deposit Of Pay
As of January 14, 2008, New York employers must obtain written consent from employees in order to pay them by direct deposit.
Frequency Of Pay: Must Be Semi-Monthly Or More Frequently
As of October 16, 2007 New York now requires that employees be paid at least semi-monthly, on regularly scheduled pay days. Bi-weekly pay is permitted, except that manual workers (a term defined by law) must be paid weekly. Manual workers must also be paid no later than seven days after the end of the week where the wages were earned.
Penalties For Wage And Hour Violations:
An Ounce Of Prevention Versus A Pound Of Flesh
The dramatic increase in wage and hour claims is astounding. Litigation through class actions and collective actions, as well as Department of Labor audits and investigations are being reported in the media, making more employees aware of their rights.
Employers often learn the hard way that the potential exposure (which may include personal liability – even if you are incorporated or in a limited liability company or partnership) can be staggering. This is true even where the violation of the law was not willful. In other words, wage and hour matters typically amount to determining not whether money is owed, but “how much” is owed.
New York’s Labor Law is quite unforgiving. The law has a six-year statute of limitations (even though wage records must only be kept for three years), fines can be imposed, and violations are punishable as a crime.
Determinations by the Commissioner of Labor are especially painful. The employer is responsible for the unpaid wages plus interest (at up to 16.00% per year) and civil penalties.
Where an employee sues and prevails, the law permits a court to award the recovery of the fees incurred by the employee’s attorney. If the violation is found to be “willful,” the court may award 25% liquidated damages to the amount of wages owed.
Recent decisional law demonstrates an alarming trend that favors employees, especially where the employer has failed to maintain records or it is perceived that the employer was taking advantage of its employees. This is a law that should be respected and obeyed. Are you in compliance?
$900+ Weekly Salary Now Required For Exempt Employees
New York employers should be aware that the minimum hourly wage in New York is now $7.15 per hour for non-exempt employees and that overtime must be paid where such employees work more than 40 hours in a workweek.
The minimum wage and overtime laws do not apply to employees who meet certain recognized exemptions, such as executives, administrative employees and professionals. Whether someone is correctly classified as falling into one of these exemptions is an area that is often litigated as the tests to determine exempt status are complicated and sometimes defy common sense.
Exempt employees must perform certain duties under these tests and they must be paid in accordance with a “salary basis test.” Paying a non-exempt employee a salary (even one that passes the “salary basis test”) does not make the employee exempt. But paying an exempt employee in violation of the salary basis test makes him or her non-exempt, meaning that they must be paid overtime. As of January 14, 2008 one component of the salary basis test is changing: The employee must earn a minimum of $900 per week. While it is a good idea to examine whether your employees are properly classified, a starting point is to ensure that these employees are all earning more than this amount.
New I-9 Form Now Available Online
Employers are required to complete a form I-9 for each new employee that is hired. The Department of Homeland Security has issued a new form for use through June 30, 2008. The new form can be obtained through the following link:
http://www.uscis.gov/files/form/i-9.pdf
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For information, contact Tarter Krinsky & Drogin LLP at (212) 216-8000
or visit our website at www.tarterkrinsky.com. |
© 2008 by Tarter Krinsky & Drogin LLP
This article is published as an information service to our clients and friends. Please recognize that the information is general in nature and may not be relied upon as legal advice. Under the rules of certain jurisdictions, this material may be considered attorney advertising. Prior results do not guarantee a similar outcome.
Circular 230 Disclosure Notice: To ensure compliance with Treasury Department rules governing tax practice, we inform you that any advice contained herein (including any attachment) (1) was not written and was not intended to be used, and cannot be used, for the purpose of avoiding any federal tax penalty that may be imposed on the taxpayer; and (2) may not be used in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.
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