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April 2011 Archives

April 12, 2011

New York State Department of Labor Releases Wage Theft Prevention Act Guidance & Template Notices

In anticipation of the April 9, 2011 effective date of the Wage Theft Prevention Act (the "Act"), the New York State Department of Labor (the "NYDOL") has published notification templates, Guidelines and Instructions for Written Notice of Rates of Pay and Regular Payday, and Wage Theft Prevention Act Frequently Asked Questions on its website to assist employers in complying with the new law. As reported in more detail in our December 20, 2010 blog post, the Act imposes new wage notice, wage statement and recordkeeping obligations on employers, enhances penalties for state Labor Law violations, and expands the scope of retaliation protections, among other things.

Under the Act, which significantly modifies Section 195 of the Labor Law, employers must furnish employees with notices of wage rates at the time of hiring; annually on or before February 1 of each year; and within 7 days of a change, if the change is not listed on the employee's pay stub for the following pay period. In its newly issued guidance, the NYDOL clarifies that while the wage notice provided to new hires may accompany employment agreements and/or offer letters, all wage notices must be provided on a stand-alone document. Further, the NYDOL states that, for any reduction of wage rate, an employee must be notified in writing prior to the reduction being implemented. Employers in the hospitality industry, meanwhile, must notify employees of all pay changes.

The NYDOL has also issued wage notification templates for the following groups of employees: (1) hourly rate employees; (2) multiple hourly rate employees; (3) employees paid a weekly rate or a salary for a fixed number of hours (40 or fewer in a week); (4) employees paid a salary for varying hours, day rate, piece rate, flat rate, or other non-hourly basis; (5) prevailing rate and other jobs; and (6) exempt employees. In conformity with the Act, which requires the notice to be provided in English and the employee's primary language (if a dual-language template is made available), the NYDOL posted dual-language templates in Chinese, Korean, and Spanish. The NYDOL guidelines indicate that additional dual-language templates will be made available in Haitian-Creole, Polish, and Russian.

Each template notice also contains an acknowledgment, which employees must complete as proof of receipt of the notice. Where an employee refuses to sign the acknowledgment, the NYDOL advises that "the employer should still give the notice and note the worker's refusal on its copy of the notice." Under the Act, employers must keep a copy of the notice for 6 years. The Act provides employers with the option of using the appropriate NYDOL template notice or creating their own notice, so long as the employer's version contains the information found in the applicable NYDOL templates.

The Act also mandates that the notice contain certain information, including the regular rate of pay, regular payday and, if applicable, overtime rate of pay; how the wage payment is calculated; the employer's intent to claim allowances (e.g. tip, meal, or lodging); and pertinent information about the employer such as the physical address of the main office or principal place of business, the doing business as name, and the employer's phone number. The Act provides for a catch-all that allows the Commissioner of Labor to require the notice to include other information she deems "material and necessary." In light of this provision, the template notices appear to require information beyond what is expressly prescribed by the Act. For example, in each template notice, employers must indicate whether the pay periods are weekly, bi-weekly, or other. Further, the form addressed to employees who earn prevailing wages requires employers to identify the applicable occupation and the non-prevailing pay rate for that occupation.

The recently published NYDOL guidance contains additional noteworthy notice requirements specific to exempt employees. The new guidelines provide that employers "may state the specific exemption that applies," but are not required to do so. Consistent with this guidance, the template Notice For Exempt Employees provides space for the employer to list the applicable exemptions, but additionally states that this information is "optional."

The NYDOL guidance also specifically permits employers to provide the required notice electronically. Employers that choose this option must have a system that allows employees to acknowledge receipt of the notice and print out a copy of the notice.

The NYDOL has also issued Guidelines for Notice and Acknowledgment of Wage Rate(s) for Temporary Help Firms. Recognizing that temporary help firms may not be able to supply all of the information required by the Act "because wages and paydays may vary by assignment," the NYDOL imposes more lenient notification requirements on temporary help firms. At the time of the initial hire, temporary help firms must provide employees with, among other things, a range of hourly wages likely to be earned. Moreover, once a temporary help firm assigns an employee to perform specific work for other organizations, the temporary help firm must notify the employee, either verbally or in writing, of "the specific designated payday for the particular assignment; the actual hourly rate of pay for the assignment; and the overtime rate of pay he or she will receive; or, if applicable, inform the employee that the position is exempt from additional overtime compensation and the basis for the overtime exemption."

This post was authored by Matt Lampe, Craig Friedman, and David Krieger of Jones Day.

The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

April 19, 2011

New York Court of Appeals Gives Broad Reading to New York City Human Rights Law's Retaliation Provision

On March 31, 2011, in Albunio v. New York City, N.Y., the New York Court of Appeals broadly construed the word "oppose" within the retaliation provision of the New York City Human Rights Law. This is another decision in the recent trend of state court decisions, including Court of Appeals decisions, giving broad reading to the City Human Rights Law in light of the "Local Civil Rights Restoration Act of 2005" ("LCRRA"). The LCRRA provided that the provisions of the City Human Rights Law should be "construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws...have been so construed." N.Y. Admin. Code § 8-130.

Under New York Administrative Code § 8-107(7), to prove retaliation, a plaintiff must show that he or she "opposed any practice forbidden under this chapter." In Albunio, two employees of the New York City Police Department sued the City, alleging that they were retaliated against in violation of the City Human Rights Law. A jury agreed with the Plaintiffs, and the judgment was affirmed by the Appellate Division, leading to the appeal to the Court of Appeals.

The first employee, Connors, filed a complaint with the police department's Equal Opportunity office, alleging that his second-level supervisor, Hall, had discriminated against another employee, Sorrenti, based on his sexual orientation. According to the Court of Appeals, because Connors filed a complaint, he had "opposed" discrimination within the statute. As there was evidence that Hall knew about the complaint and adverse actions had been taken against Connors, the Court of Appeals affirmed the jury's conclusion that Connors had been retaliated against under the statute.

The more difficult question for the Court of Appeals was whether the second plaintiff, Albunio, had "opposed" any discriminatory practice. According to the Court of Appeals, Albunio recommended Sorrenti for a position after interviewing him. She then sat in on a second interview of Sorrenti, primarily conducted by her immediate supervisor, Hall. Allegedly, Hall questioned Sorrenti in detail about his marital status and his relationship with another police officer. According to the Court's opinion, after the interview, Hall told Albunio he had selected another candidate because he "found out some f___d up sh__ about Sorrenti and . . . wouldn't want him around children." Plaintiffs claimed that a few months later, Albunio met with Hall and Patrick, Hall's supervisor, during which Patrick told Albunio that he and Hall were thinking about replacing her, and Hall interjected that it was due to her utilization of bad judgment in selecting personnel, citing Sorrenti as an example. According to the Court of Appeals, Albunio stated that she would stand by her recommendation of Sorrenti, and was then told that her best interest would be to find another assignment. The opinion states that she ultimately found another assignment which was less favorable than her role under Hall.

The Court of Appeals concluded that Albunio had "opposed" discrimination during the meeting with Patrick and Hall, finding that that "[w]hile she did not say in so many words that Sorrenti was a discrimination victim, a jury could find that both Hall and Albunio knew that he was, and that Albunio made clear her disapproval of that discrimination by communicating to Hall, in substance, that she thought Hall's treatment of Sorrenti was wrong." The court also found that there was a causal connection between Albunio's statement during the meeting and her removal from her position, agreeing with the jury that Albunio had been retaliated against.

In reaching its decision, the Court of Appeals specifically stated that it was "[b]earing in mind the broad reading that we must give to the New York City Human Rights Law." This decision comes on the heels of other recent decisions giving broad interpretations to the City Human Rights Law. For example, the Court of Appeals recently held in Zakrzewska v. New Sch., 928 N.E.2d 1035 (N.Y. 2010), that the Faragher/Ellerth defense to sexual harassment claims does not apply to actions under the City Human Rights Law, but an employer's anti-discrimination policy may only mitigate civil penalties and punitive damages in some circumstances. Similarly, in Williams v. New York Housing Auth., 872 N.Y.S.2d 27 (N.Y. App. Div. 1st Dep't 2009), the Appellate Division held that a plaintiff can prove hostile work environment claims by showing by a preponderance of the evidence that he or she was treated worse than other employees because of a protected characteristic, rejecting the federal "severe and pervasive" standard.

This post was authored by Matt Lampe , Craig Friedman, and Kristina Yost of Jones Day.

The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

About April 2011

This page contains all entries posted to Labor & Employment N.Y. ("LENY") in April 2011. They are listed from oldest to newest.

March 2011 is the previous archive.

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