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Pay Attention to New Proof-of-Age Requirement for N.Y. Employers

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in Discrimination and Harassment,Employment Law,Hiring,Human Resources

by Nixon Peabody LLP

A little-noticed amendment to New York's Labor Law imposes a new recordkeeping requirement on New York employers.

We're all familiar with the requirement that, for most types of employment, minors under age 18 must provide employers with employment certificates, commonly known as "working papers," to lawfully hold jobs.

Employers must keep the employment certificate on file during the minor's employment and produce it to the New York Department of Labor (DOL) on demand. Employers are subject to penalties and fines if they hire a minor without obtaining an employment certificate.

But what if a minor says that he or she is 18 or older and the employer doubts the statement is true?

Until December 2005, New York's Labor Law said only that an employer could require a certificate of age issued by an employment-certificating officer from anyone claiming to be over 18. This certificate, when kept on file by the employer, would be conclusive evidence that the person had reached the stated age.

But state legislature has now converted a practice that protects employers into a new, mandatory recordkeeping requirement.

Obtain proof from 18- to-25-year-olds

Effective Dec. 15, 2005, New York employers must require proof of age from certain young adults: those employees claiming to be between 18 and 25 years old. (Labor Law Sec. 135(2))

Employers must produce this new proof of age to the state DOL upon demand. Proof of age must be in the form of either:

  1. A driver's license or other documentation issued by any state or federal government.
  2. A certificate of age issued by an employment-certificating official (including a previously issued employment certificate).

When the original or a legible copy of this proof is kept on file and is subject to inspection at the employee's place of employment, that documentation is conclusive evidence the employee has reached the stated age.

According to the legislature, this new mandatory requirement will enhance the enforcement of child-labor protections by ensuring the ready availability of essential evidence.

Under the law, if an employee appears to be under 18, but the employer has no employment certificate on file, the New York DOL can require the employer to either obtain proof of age or terminate the employee within 10 days. Continued employment without proof of age is prima facie evidence of unlawful employment in any child-labor law prosecution.

I-9 documents may do the job

The good news for employers is that not much more need be done to comply with this new requirement.

First, proof of age need not, and should not, be requested of applicants pre-hire. That way, you'll avoid violating federal and state prohibitions on age discrimination and unlawful pre-employment inquiries.

Second, most documentation accepted for I-9 verification under the Immigration Reform and Control Act will already include a document containing the employee's birth date.

Employers need only seek proof of age for employees claiming to be between 18 and 25 years old in those few cases where I-9 documentation does not already suffice.

Recall, though, that employers are strictly prohibited from requesting that employees produce specific documents to verify their I-9 status. Employers must permit employees to provide any of the documentation listed as acceptable by the federal government for I-9 verification purposes.

Keep age documentation on file

If you don't already do so, you should keep on file a copy of the documentation for those employees claiming to be ages 18 through 25.

If an employer is consistently failing to obtain I-9 information from all new hires, this New York amendment is another reason to come into full compliance immediately.

It's unclear how much emphasis the New York DOL will place on enforcement of this new requirement, particularly in situations where there is no contention that the employer has unlawfully employed any minors.

Nor is there any indication yet whether the department will seek to enforce the law retroactively (i.e., for employees hired before Dec. 15, 2005).

One may expect that, if a minor under age 18 lies about his or her age and the New York DOL learns of it, the employer will have no defense to a finding of a child labor-law violation if it does not have the required "proof" of age on file.

This new requirement is just one more reason for employers to follow the letter of the law when hiring and employing both minors and young adults.

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Excerpted from Employment Law Alert, a publication of the Nixon Peabody LLP law firm. Contact them at www.nixonpeabody.com.

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