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More new state laws to complicate life for employers

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in Compensation and Benefits,Employee Benefits Program,FMLA Guidelines,Human Resources

In 2007, New York lawmakers passed a record number of laws affecting employers, including new laws on independent contractors, inquiries into conviction records, leave for military spouses, leave of absence for blood donations and cancer screenings, and unemployment benefits.

Independent contractors

To protect employees from potential exploitation and to collect payroll and other taxes, New York is stepping up its fight to make sure employees are properly classified as employees. By misclassifying employees as independent contractors, employers can evade minimum wage, overtime and workers’ compensation laws.

Gov. Eliot Spitzer recently signed an executive order establishing the Joint Task Force on Employee Misclassification. The task force will issue a report to the governor each Feb. 1, detailing enforcement efforts to stop employers from misclassifying employees as independent contractors.

The task force includes representatives of various agencies and plans to coordinate investigation and enforcement by soliciting complaints through a hotline and referring cases to district attorneys.

Inquiries into conviction records

Effective Nov. 1, 2007, New York employers may no longer inquire about or make an adverse employment decision based on an applicant’s or employee’s youthful offender adjudication or criminal conviction record that has been sealed. Under the current law, employers are prohibited from making adverse employment decisions based on past convictions unless the offense has a direct relationship to the employment or would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.

Advice:
Make certain any employment applications you use specify that applicants don’t have to disclose juvenile criminal records or those that are under seal.

Leave of absence for military spouses

Labor Law Section 202-i, requiring an employer to allow up to 10 days’ unpaid leave to the spouse of a member of the armed forces, National Guard or reserves who has been deployed during a period of military conflict, was amended effective Aug. 15, 2007 (and deemed retroactively effective Aug. 16, 2006) to include New York state as an “employer” under the statute. The law applies where the employee works an average of 20 or more hours per week, and the employer employs 20 or more workers.

Recently, the FMLA also was amended to provide additional leave for military spouses and family members. The U.S. Labor Department is working on implementation regulations.

Leave of absence for blood donation

Effective Aug. 5, 2007, a new section was added to the New York Labor Law to require employers with 20 or more employees to grant three hours of leave in any 12-month period for employees to donate blood. An employer may not retaliate against any employee who exercises this right.

Leave of absence for cancer tests

Effective Aug. 2, 2007, public officers and state, county and municipal employees (and employees of any school district) are entitled to a leave of absence for up to four hours to undergo screenings for breast cancer or prostate cancer. The leave is considered “excused leave” and “shall not be charged against any other leave.”

The provisions do not apply to an employee of a city with a population of one million or more. It is still unclear whether the leave is paid or unpaid.

Unemployment insurance law and strike benefits

Section 592 of the Labor Law—which suspends for seven weeks a worker’s eligibility to collect benefits for lost employment due to a strike, lockout or other industrial controversy—was amended to provide that this waiting period will not apply when temporary or permanent replacement workers are hired by the employer. The amendment became effective Aug. 15, 2007.

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