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Labor and Employment Laws Present Ever-Changing Arenas of Doubt Print E-mail

Here’s a quick look at only some of the changes in law affecting employers and employees in New York State:

  • The Family Medical Leave Act has been amended by the “National Defense Authorization Act for Fiscal Year 2008” to expand the 12 weeks of leave rule to 26 weeks for “any qualifying emergency” for military personnel and their families.  Included are new definitions for “next of kin” and special rules for active duty calls.  While the law has changes, the U. S. Department of labor has yet to issues regulations to implement the law.
  • U. S. Citizenship and Immigration Services issued yet another new form I-9 for 2008 (effective as of December 27, 2007).  What now qualifies as an “Acceptable Document” has substantially changed.  Many employers are unaware of the new form requirements, but that will not prevent penalties from accruing.
  • Labor Law § 206-c was amended to allow an employee to express breast milk at the workplace for up to three years after child birth.
  • Employees are now permitted mandatory leave to donate blood.  The rule applies only as to employers with more than 20 employees and employees that work twenty or more hours per week, and it may be unpaid, but….
  • The New York Human Rights Law has been amended and re-amended to further prohibit employment discrimination for youthful offender adjudications and prior criminal convictions.  This prohibition even applies to applicants with criminal records!  This law seems to provide a remarkable opportunity to advocate for judicial interpretation since it is written in gray ink.
  • The Labor Law has been amended to re-classify employees based upon the level of wages earned, thus in turn regulating how often paychecks must be delivered, what notices an employee is entitled to, direct deposit requirements, and unpaid wage supplements and benefit reimbursements.
  • Prevailing Wage Laws (see e.g., labor Law Article 8) now require prevailing wage employers to provide written notices of all sorts to employees, and a failure to do so hosts all sorts of penalties and compliance problems, even “blacklisting”. 
  • Arbitration and judicial rulings regarding union and union member employee activities at the workplace have changes so significantly in the past 2 years that a practitioner is well advised to pay for a subscription to NLRB cases and interpretations.  Employee email usage, illegally obtained evidence of misconduct, salting, union balloting, and many other areas are quickly changing.
  • New York now required commissioned sales persons to have written contracts.  Absent a written agreement, the law provides that the employee’s understanding of the terms of employment trumps.  Of course, the Department of Labor gets inspection and penalty rights…
  • The New York Social Security Number Protection Law became effective on January 1, 2008, so now social security privacy rights is the law.  Though new, such laws are being considered for major expansion at the federal and State level.
  • Out-of-State employees may in fact be subject to New York State taxes, despite federal exemption laws.
  • New York State and the federal government are both considering more laws and regulations to re-define what is an independent contractor versus what is an employee.  This area is a morass and employers are advised not to guess or gamble here as there are simply too many rules, penalties, and governmental agencies with differing standards involved in this area of law.  NYS even now has a special task force on employee classification – in part an enforcement team, so seek competent counsel upon these types of classification questions.
  • Rules concerning the requirement that administrative processes be utilized before a federal discrimination claim may be brought in court are disappearing.  The Courts now expressly hold that certain ADA claims are exempt from the such rules and precedents.

Hence, if you are an employer in New York State, do not assume that your decisions, rational or legal in the past, remain so today.


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