Reminder to New York Employers: Wage Theft Prevention Act Takes Effect January 1, 2012

Under the Wage Theft Prevention Act (WTPA), all New York employers, other than governmental agencies, must give annual written notice regarding wages to, and obtain a written acknowledgement from, employees at the time of hiring (before any work is performed) and between January 1 and February 1 of each year.   The notice must contain the following information: 

• the employee's rate or rates of pay (including hourly rate and overtime rate of pay for employees who are not exempt from overtime);
• whether paid by the hour, shift, day, week, salary, piece, commission or other;
• whether the employer intends to claim any allowances as part of the minimum wage, including tip, meal or lodging allowances; 
• the regular pay day;
• the name of the employer and any "doing business as" names;
• the physical address of the employer's main office or principal place of business, and a mailing address if different; and
• the telephone number of the employer.

The notices must be provided to employees in English and in the employee's primary language as identified by each employee, and the acknowledgement must contain an affirmation by the employee that he or she accurately identified his or her primary language to the employer and that the notice was provided in the language so identified or otherwise complied with Section 195 of the Labor Law. The employer must keep the signed acknowledgement for six years.

In addition, the wage statement (pay stub) must also now include the following information pertaining to employee’s regular and overtime hours and other information.  All records must be maintained for six years.

Bottom Line:  Begin preparing notices now for distribution on January 1;

Review your workforce to determine the languages other than English that you will need to have on hand for your employees.  Dual-language templates are currently available in Spanish, Chinese, Korean, Haitian Creole, Polish, and Russian on the New York State DOL website.  If the employee identifies a primary language other than one of these six, the employer may provide the Notice in English only.    

Templates of all WTPA are available on the NewYork State DOL website. 

Please contact me if you'd like additional information about these requirements.

It’s the Most Wonderful Time of the Year (for Plaintiff’s Attorneys)

Holiday Parties: 4 Areas of Exposure and How to Avoid Liability

Alcohol - Having no alcohol at holiday parties can greatly reduce risks of liability (e.g., injuries at the party, harassment/improper comments).  But the reality is that everyone likes a little holiday cheer (in moderation).  If you choose to have alcohol at your event, here are a few things to consider:

• Try to limit alcohol consumption by offering a variety of alternatives to alcohol and ensure that sufficient food is served.  Also, consider serving only beer or wine and not offering any hard liquor; 
• Offer a limited number of drink tickets and a cash bar.  Non-alcoholic beverages should be free and plentiful; 
• Provide cab vouchers or otherwise arranging for the safe transportation home (e.g., car pools).  This can help reduce the risk of drunken employees driving on the roads;
• Have a luncheon where it is less likely that employees will drink too much (or at all).

Harassment- Although holiday parties are business events, employees sometimes engage in behavior they would typically avoid at work.  Management and Human Resources should look out for inappropriate behavior and respond promptly and appropriately to protect employees from otherwise avoidable incidents and the employer from liability.  This doesn’t mean organizing a sentinel watch, but keep your eyes open.  Even though employees are having fun, this is not the time for HR to look the other way.

Religious Discrimination – employers should be sensitive the variety of beliefs within their workforce.  Be as inclusive as possible when organizing and promoting holiday events. 

Attendance - Attendance should be optional – if attendance is mandatory, you might have to pay your employees for attending.

Holiday parties can be fun and an opportunity for you to express your appreciation to your employees.  Unfortunately, these can have the unintended effects of increasing employee complaints and possibly litigation.  If you’re thinking about sponsoring a holiday party for your staff, plan carefully and hopefully everyone will enjoy themselves. 

If you have any questions about holiday parties or any other employment law issues, please contact me. 

Safety Assessment or ADA Medical Examination?

A hearing-impaired FedEx employee was assigned to work as a freight handler at Kennedy Airport in New York for several years.  He operated machinery to load and unload heavyweight freight to and from the aircraft.  Over a course of time, the employee committed several safety violations and as a result, FedEx managers required the employee to participate in a field safety assessment under actual working conditions (on the tarmac with airplane engines running).  The purpose was to evaluate the employee’s ability to hear co-workers under actual working conditions.  The results were inconclusive.  The employee declined to participate in further field assessments.  At the employee’s attorney’s request, FedEx transferred the employee to a position that did not involve the operating of heavy machinery.  The employee retained his title, wage and benefits.  Despite these facts, the employee sued FedEx in New York Federal District Court, alleging that FedEx discriminated against him because of his disability and that he was disadvantaged in his new job because it required more physical exertion than his former position. 

Employers should be aware that pursuant to the Americans with Disabilities Act, they may not require an employee to submit to a medical examination or ask about an employee’s disability unless the examination is job related and consistent with a business necessity.  In this instance the court found that the field tests were safety tests and not subject to the ADA’s restrictions.  The court concluded that FedEx had a reasonable basis for requiring the employee to demonstrate his ability to operate heavy machinery safely in the airport environment, especially given observations by supervisors of safety violations that could be reasonably related to the employee's disability.  Read the opinion here.

Bottom Line:  It may be permissible for an employer to require an employee to demonstrate his or her ability to perform aspects of  his or her job, especially when there have been observations that call the employee's ability into question.  


For more information, visit my website www.jmkuls.com. 

If you're dealing with a similar issue contact me.