Real Workplace Issues
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October 2007
In This Issue: Important New York Labor and Employment Law Updates
  • Commissioned Salespersons Must Now Have Written Agreements
  • Greater Restrictions Placed on Employer's Use of Background Screening
  • Employers Required to Provide Leave for Blood Donators
  • Nursing Employees Given the Right to Express Breast Milk at Work
  • A Look Into the Future: Last Employer Will Soon be Able to Have Unemployment Benefit Charges Recalculated
  • Welcome to the latest installment of "Real Workplace Issues," a newsletter dedicated to providing our clients and friends with practical, everyday employment law and HR information.

  • In this issue, we highlight some important recent amendments to New York's Labor Law that may impact your Company's policies and practices.


    Commissioned Salespersons Must Now Have Written Agreements

    New York Labor Law Section 191 (c) has been amended, effective October 16, 2007, to require that employers place the terms of employment for commissioned salespersons in writing. Such "terms" include a description of how salary, drawing account, wages, commissions and all other monies earned and payable are to be calculated. Likewise, the written agreement must describe how such monies are to be paid if the employment relationship is terminated by either party.

    These agreements must be (1) signed by both the employer and employee, (2) kept on file by the employer for at least three years, and (3) provided to the New York State Department of Labor upon request.

    The new law also makes it clear that employers without written agreements for their commissioned sales persons place themselves in great risk, as the NYS Department of Labor will view the terms of employment as presented by the employee as controlling should that employee file a wage complaint. It is therefore imperative that New York employers make sure they are in compliance with these new requirements as soon as possible.

    Greater Restrictions Placed on Employer's Use of Background Screening

    New York State Executive Law (the "Human Rights Law") Section 296(16) has been amended to prohibit employers from inquiring into or making adverse employment decisions based on the criminal conviction of an applicant or current employee where (1) the conviction record has been sealed pursuant to Section 160.55 of the Criminal Procedure Law, or (2) where the conviction is classified as a "youthful offender adjudication" under Section 720.35 (1) of the Criminal Procedure Law.

    Employers Required to Provide Leave for Blood Donators

    New York Labor Law (Section 212-j) now requires New York employers to provide three hours leave in any twelve month period to employees who wish to donate blood. The law is applicable only if (1) the employer has more than twenty employees, and (2) the employee seeking such leave works twenty or more hours per week. The law does not require that the three hours of leave be paid.

    Nursing Employees Given the Right to Express Breast Milk at Work

    Effective August 15, 2007, New York employers will be required to either (1) provide a reasonable amount of unpaid daily break time, or (2) permit nursing employees to use paid daily break time or meal time to express breast milk for a period of up to three years following childbirth.

    Employers will also be required to make "reasonable efforts" to provide a clean, private room where nursing employees can express and store breast milk.

    A Look Into the Future: Last Employer Will Soon be Able to Have Unemployment Benefit Charges Recalculated

    Currently, the last employer is required to pay 100% of unemployment insurance benefits for the first seven weeks of a former employee's claim. Effective January 1, 2009, however, the last employer of a claimant who has filed for unemployment benefits may apply to the Department of Labor to have those benefits recalculated if the employer can demonstrate that it paid the claimant less in total wages than the seven weeks of benefits it would otherwise have to pay. If such a showing can be made, the last employer would only have to pay in benefits an amount roughly equal to the amount of compensation it had paid the claimant. The remainder of the charges would be allocated proportionately among all base period employers.

    If you need help interpreting these laws or integrating them into your Company's policies, please contact us.


    We also welcome your comments and suggestions on our newsletter. Feel free to contact us at the e-mail address provided below.

    This article is provided for informational purposes only and is not intended to be legal advice nor does it create an attorney-client relationship between Halpern Employment Law Advisors and any reader.

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