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IN THIS ISSUE
EEOC Releases 2009 Statistics
NYSDOL Clarifies New "Notice of Pay" Requirements
New York "Notice of Pay" Law Also Affects Commissioned Salesperson Agreements
New DOD Act Extends COBRA Subsidy
CT Minimum Wage Increases, CO Minimum Wage Decreases
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Real Workplace Issues
February 2010
Greetings!

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 the EEOC's final 2009 statistics and detail New York State's new "Notice of Pay Requirements." We also review the extension of the 65% COBRA subsidy. Finally, we touch upon two noteworthy state minimum wage changes, one of which may surprise you.

Halpern Employment Law Advisors would also like to extend a special thanks to Charles C. Shulman, Esq., who provided the COBRA subsidy information below. Charles practices employee benefits and executive compensation in New York and New Jersey, and can be reached at cshulman@ebeclaw.com.
As always, feel free to contact us should you require any assistance, or have any questions regarding the information contained in this newsletter.

Sincerely,

Halpern Employment Law Advisors
EEOC Releases 2009 StatisticsStatistics

The Equal Employment Opportunity Commission has released its 2009 statistics. The 2009 fiscal year saw a total of 93,277 charges filed with the EEOC, the second-highest total ever. (The 2008 fiscal year saw the highest total of charges ever filed at 95,402.) The high number of discrimination allegations is often attributed to the continuing depressed economy and the rise in unemployment.

Noting that many individuals who file charges allege multiple types of discrimination, the charges filed in 2009 most frequently alleged retaliation (36%), race discrimination (36%) and sex discrimination (30%). Charges alleging age discrimination comprised 24.4% of the total charges filed, while disability discrimination charges reached 23%.

These statistics can be found in greater detail on the EEOC's website under "Enforcement and Litigation Statistics." Another pertinent statistic for employers - the EEOC obtained a total of $294.2 million dollars in monetary relief during the 2009 fiscal year. This number does not include monetary benefits obtained through litigation.
NYSDOL Clarifies New "Notice of Pay" Requirements

In the November 2009 edition of "Real Workplace Issues," we highlighted New York State's new requirement that NY employers provide newly-hired employees with written notice of their rate of pay, rate of overtime pay (if applicable) and regular payday, and obtain written acknowledgment of each newly-hired employee's receipt of such notice.
 
In an effort to provide NY employers with additional guidance on the requirements of NY Labor Law Section 195.1, the New York State Department of Labor has issued guidelines, instructions and a variety of sample forms.
 
The "Guidelines for Written Notice of Rates of Pay and Regular Payday" reveals several important facets of the new law, including the following requirements:
  1. The written notice must be given to the employee at the time of hiring, before any work is performed.
  2. Contrary to the NYSDOL's original position, employers are not currently required to use the NYSDOL's forms so long as the forms contain the required information.
  3. The notice to exempt employees must state the specific exemption (i.e., executive, administrative, professional). 
  4. The employer must keep a copy of the signed notice for six (6) years.
The Guidelines, model forms and accompanying instructions can all be found under the "Forms-Worker Protection-Employment Laws/Labor Standards" section of the NYSDOL's website.
New York "Notice of Pay" Law Also Affects Commissioned Salesperson Agreements

Back in October of 2007, New York Labor Law Section 191(c) was amended to require that employers place the terms of employment for commissioned salespersons in writing. For a detailed description of the requirements of NYLL 191(c), see the October 2007 edition of "Real Workplace Issues."
 
According to the previously mentioned "Guidelines for Written Notice of Rates of Pay and Regular Payday," written salesperson agreements that comply with NYLL 191(c) will also satisfy the new "notice of pay" requirements under NYLL 195.1 if the following conditions are met: 
  1. It tells the salesperson if he or she is eligible for overtime pay, and if not, specifies the exemption under which the salesperson falls;
  2. It notifies the eligible salesperson of the method of calculating his or her overtime rate of pay (this must include commissions as part of the regular rate);
  3. It notifies the salesperson of his or her designated pay day or method for determining when the salesperson will be paid; 
  4. It is acknowledged in writing as received by the employee; and
  5. It is kept on file for six (6) years.
New DOD Act Extends COBRA Subsidy

In the March 2009 edition of "Real Workplace Issues," we highlighted the American Recovery and Reinvestment Act of 2009 (the "Stimulus Act"), which created a temporary nine (9)-month government subsidy of 65% of the COBRA continuation health coverage premiums for employees involuntarily terminated between September 1, 2008 and December 31, 2009. For most plans, that subsidy took effect on March 1, 2009 and expired on November 30, 2009.

However, on December 19, 2009, legislation was enacted as part of the Department of Defense Appropriations Act for Fiscal Year 2010 (the "DOD Act") that extends both the duration and eligibility period for the Stimulus Act's 65% COBRA premium subsidy. The following are some key highlights of the DOD Act, which is effective as of February 17, 2009 (the same date as the Stimulus Act):
  1. COBRA Subsidy Eligibility Period Extended Two (2) Months to February 28, 2010. The DOD Act extends the COBRA premium subsidy eligibility period for an additional two (2) months, and therefore it would apply for involuntary terminations through February 28, 2010, rather than Dec. 31, 2009. (Note that there is currently legislation proposed that would further extend the COBRA eligibility period for the subsidy to June 30, 2010.)
  2. COBRA Subsidy Duration Extended for Six (6) Additional Months (for Total of 15 Months).The DOD Act also extends the duration of the premium subsidy for an additional six (6) months. The total duration of the subsidy will therefore be 15 months rather than nine (9) months. This applies to all involuntary terminations between September 1, 2008 and February 28, 2010 where COBRA is elected. (Note that the phase-out of the subsidy for high-income individuals remains unchanged. The subsidy is phased-out for single filers with an adjusted gross income of between $125,000 and $145,000, or for joint filers with an adjusted gross income of between $250,000 and $290,000.)
  3. Retroactive Payment for Transition Period. With respect to the transition period, the DOD Act allows retroactive payment for the COBRA coverage through February 17, 2010 (i.e., 60 days after enactment), or if later within 30 days after receipt of notice of the subsidy extension. The premium must include the period from when the COBRA coverage was originally lost (and, if applicable, health coverage will be reinstated retroactively). The "transition period" is the period from when the COBRA subsidy would have ended and the enactment of the extension in the DOD Act.
  4. Refund or Credit for Overpayments. Overpayments of premiums for the transition period shall be reimbursed or applied toward future payments. 
  5. Notice Requirement. Notification of the amendments made to the COBRA subsidy by the DOD Act within 60 days after enactment (i.e., by February 17, 2010) is required for individuals who were eligible for the COBRA subsidy on or after October 31, 2009 or experienced a termination qualifying event on or after such date. Eligible individuals who lost the subsidy because they did not timely pay for continued COBRA must be notified of their ability to make retroactive payment for the transition period. Updated Model Notices, as well updated Premium Reduction Fact Sheets, can be found at www.dol.gov/ebsa/COBRA.html.
  6. Clarification that Eligibility for COBRA Subsidy is Tied to Date of Qualifying Event. The DOD Act provides that eligibility for purposes of the COBRA subsidy does not depend on the loss of coverage but rather the date of the qualifying event. Thus, if a termination qualifying event occurs on February of 2010 but the individual does not lose coverage until March 1, 2010, the beneficiary is entitled to the COBRA subsidy even though the loss of coverage did not occur until March 1, 2010.
  7. Applicability to New York State Mini-COBRA. New York is one of approximately 40 states that have continuation health coverage requirements for insured group health plans that apply to small employers with at least two (2) employees who do not meet the 20-employee threshold needed to trigger Federal COBRA.The 15-month, 65% COBRA subsidy applies to New York State Mini-COBRA rules. In addition, New York State recently extended its mini-COBRA continuation health coverage to 36 months. Thus, there could be 15 months of subsidized COBRA and an additional 21 months of non-subsidized Federal or state COBRA. For more information on New York State Mini-COBRA and the COBRA subsidy in general, visit Charles Shulman, Esq.'s website at www.ebeclaw.com.
CT Minimum Wage Increases, CO Minimum Wage Decreases

Connecticut's minimum wage increased to $8.25 per hour as of January 1, 2010.

 CO Minimum Wage

On the other hand, as of January 1, 2010, Colorado's minimum wage decreased from $7.28 per hour to $7.24 per hour. This drop marks the first decrease in any state's minimum wage since the federal minimum wage was adopted in 1938. Colorado's minimum wage is tied to inflation and dropped because the state's consumer price index fell to 0.6% in 2009. However, since no state's minimum wage can be below the federal minimum wage, employees in Colorado must receive a minimum wage of at least $7.25 per hour in 2010.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter that is contained in this document.

In addition, this newsletter is provided for informational purposes only and is neither intended to be legal advice nor does it create an attorney-client relationship between Halpern Employment Law Advisors and any reader.