Employment Matters Blog - A blog about current developments & issues in employment, labor & benefits law

By Michael S. Arnold

New York State Department of Labor has released proposed regulations under its recently enacted Wage Deduction Law.  The Law, which went into effect in November 2012, permits employers to deduct certain amounts from employees’ wages, including deductions to recover wage overpayments, for repayments of employer loans, and to provide for the payment of items such as gym memberships, parking or mass transit passes and day care, among many other items.  The proposed regulations, accessible here, focus on authorized deductions for the benefit of the employee and deductions for advances and overpayments. 

By Michael S. Arnold

Governor Cuomo has finally signed a bill amending New York’s Wage Deduction law (Section 193) to permit employers to deduct certain amounts from employee wages to recover wage overpayments and for the repayment of employer loans.  The law also permits employers to deduct certain amounts from an employee’s paycheck, for the payment of items such as gym memberships, parking or mass transit passes and day care, among many other items. 

Employers have long been frustrated by their inability to make these types of deductions, especially as they often benefit the employee as well as employer.  The law goes into effect on November 8, 2012. 

The complete amendment can be accessed here.

My colleague, David Barmak, has published an alert describing the Supreme Court decision in Christopher v SmithKline Beecham Corp., handed down on Monday, June 19.  Click here to read David's analysis of this major win for pharmaceutical companies,

By Michael S. Arnold

Quick update on the New York Wage Theft Prevention Act, which we reported about here, here and here. The New York Senate has passed a bill eliminating the requirement that employers provide their employees with an annual pay notice. The bill now goes to the New York State Assembly. We will report back after it votes.

By Brandon T. Willenberg

We recently reported about the new California Wage Theft Protection Act (“Act”) that went into effect on January 1, 2012. 

On December 30, 2011, the Division of Labor Standards Enforcement (“DLSE”) published its "Frequently Asked Questions" (“FAQ”) regarding the new Act and its notice requirements.  The FAQs incorrectly stated, however, that the Act’s required notice must be provided to all current employees, despite the fact that the new statute calls only for employers to provide the Notice to employees "at the time of hiring."  The DLSE has since updated the FAQs, found here, which now correctly reflect that the new Labor Code § 2810.5 notice need only be provided to employees at the time of hiring and within seven days of a change in that information, if the change is not listed on the employee's pay stub for the following pay period.

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By Michael S. Arnold

This alert serves as a reminder that the New York Wage Theft Prevention Act requires employers to provide annual pay notices to all of their employees (whether full-time or part-time, exempt or non-exempt) between January 1 and February 1, 2012.  For seasonal employees who are not working during this period, employers must provide annual pay notices to these employees as soon as they return to work from their time away. 

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By Michael S. Arnold

On November 6, 2011 at 2:00 a.m. daylight savings time will end and most clocks across the country should be set back an hour from 2:00 a.m. to 1:00 a.m.  Non-exempt employees working a shift during that time must be provided with an additional hour of pay.  For example, if an employee’s shift runs from 10:00 p.m. to 6:00 a.m., the employee will receive nine hours of pay instead of eight hours of pay because he or she will have worked the 1:00 a.m. hour twice.  In calculating any overtime due, employers must count this additional hour in determining whether the employee crossed the 40-hour threshold and must also include the additional hour of pay in calculating the employee’s overtime rate.

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By Michael Arnold

An earthquake and a hurricane in one week in New York and elsewhere!?  With the former, you may have had to evacuate your employees from the building; with the latter, it is becoming increasingly likely that your east coast employees may not even make into the building.  Understandably, employers often become frustrated when Mother Nature disrupts their businesses, especially because of adverse weather conditions.  In New York, most often, it’s due to a blizzard.  But next week, for the first time since 1985, it may be because of a hurricane.  

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Written by Jessica Catlow

If one thing was made clear in a recent seminar sponsored by BNA that included panelists who are former U.S. Department of Labor officials, the enforcement of labor laws as they relate to the classification of service providers as employees or independent contractors is on the rise – as could be expected when both the federal government and states are starved for revenue.  Some states, such as New York, have created special tasks forces for the specific purpose of conducting audits and bringing actions against employers who improperly classify employees as independent contractors.  At least nine states have enacted statutes directed at worker misclassification, and many others have considered such legislation.  In addition, the U.S. Department of Labor is contemplating a new rule that would require employers to notify employees of their status under federal wage and hour law, and may require employers to provide the same information to service providers the employer classifies as independent contractors.

 Improperly classifying employees as independent contractors can lead to liability and penalties for failure to withhold taxes, required payroll deductions, and workers’ compensation and unemployment compensation insurance contributions.  In addition, independent contractors may have claims against employers for benefits under benefit plans offered to employees.  In light of the stepped-up scrutiny and enforcement, it is imperative that employers review their service provider classifications.  We also recommend that such a review be conducted at least once a year to ensure that any change in the independent contractor’s responsibilities does not require a re-classification.  Employers should be aware that the longer an individual performs services as an independent contractor, the more likely they will be considered employees, especially if the work being done is similar to the work done by employees and/or relates to the core operations of the employer.