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Real Workplace Issues
September 2010
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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 New York Domestic Workers' Bill of Rights, recently enacted Massachusetts laws requiring the revision of job applications and employee notice of negative personnel records, Illinois' new law limiting employer use of credit history, and the Bureau of Labor Statistics' 2009 data on the employment status of persons with a disability.
Also, be sure to check out the end of this newsletter for important information on an upcoming informative legal seminar.
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As always, feel free to contact us should you require any
assistance, or have any questions regarding the information contained in this
newsletter.
Sincerely,
Jules Z. Halpern
Halpern Employment Law Advisors
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Governor Paterson Signs New
York Domestic Workers' Bill of Rights
On August 31, 2010, Governor
Paterson signed into law the New York Domestic Workers' Bill of Rights. The purpose of the law is to "ensure that the
rights of domestic workers are respected, protected, and enforced."
The law defines "domestic worker"
as "a person employed in a home or residence for the purpose of caring for a
child, serving as a companion for a sick, convalescing or elderly person,
housekeeping, or for any other domestic service purpose." It does not include
individuals who (1) perform work on a casual basis, (2) provide companionship
services but are employed by someone other than the family or household
receiving such services, and/or (3) are a relative through blood, marriage or
adoption of the employer or of the person for whom the worker is providing
services under a program funded or administered by the government.
The Bill of Rights extends to
domestic workers the following protections under the New York State Human
Rights Law and New York State Labor Law:
- Domestic workers are protected from harassment
on the basis of sex, race, religion or national origin. This prohibition applies even where the
domestic worker is the employer's only employee (e.g., a family with one
housekeeper).
- Domestic workers must receive overtime at 1.5
times the worker's regular hourly wage rate for all hours worked over 40 in a
week. Workers who reside in their
employer's homes must receive overtime for all hours worked over 44 in a week.
- Domestic workers must receive one full day of
rest per calendar week. Those workers who choose to work on their day of rest
must be paid overtime for all hours worked that day, regardless of how many
hours they worked that week. This day of rest "should, whenever possible,
coincide with the traditional day reserved by the domestic worker for religious
worship."
- Statutory disability benefits are extended to
domestic workers to the same degree as other workers.
The Bill of Rights also entitles domestic workers to three
paid days off per calendar year after one full year of service. The law becomes effective November 29, 2010. Governor Paterson's press release can be
found at www.state.ny.us/governor/press/08312010DWBOR.html.
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Massachusetts Employers Must Revise Employment Applications
and Provide Notice of Negative Personnel Records
MA Prohibits Criminal History Questions on Applications
On August 6, 2010, the Criminal
Offender Record Information ("CORI") Reform Act was signed into law. Under the
CORI Reform Act (effective November 4, 2010), employers are prohibited from
asking about criminal history on initial written job applications. This
provision does not apply to employers that are subject to a state or federal
law or regulation prohibiting or limiting the employment of individuals with
conviction records. We will be providing
additional information on the remainder of the CORI Reform Act's provisions,
which take effect May 4, 2012, in future installments of "Real Workplace Issues."
MA Requires Notice of Negative Personnel Records
In addition, Section 52C of
chapter 149 of the General Laws of Massachusetts was recently amended to
require employers notify an employee within 10 days of the employer placing in
the employee's personnel record any information that "is, has been used or may
be used, to negatively affect the employee's qualification for employment,
promotion, transfer, additional compensation or the possibility that the
employee will be subject to disciplinary action."
The Massachusetts law broadly defines a
"personnel record" as any record that "may affect or be used relative to that
employee's qualifications for employment, promotion, transfer, additional
compensation or disciplinary action." Since personnel records are not limited
to those documents actually placed in the employee's personnel file, it is likely that informal records such as internal Company e-mails and
notes could trigger the notice requirements of Section 52C.
The new law also limits the
number of times an employee is permitted to review his/her personnel records to
two reviews per calendar year (excluding reviews triggered by the required notice of a negative personnel record).
In light of these new laws,
Massachusetts employers should immediately: (1) delete references to criminal
history in job applications (unless otherwise exempt from the CORI Reform Act's
requirements); (2) train management on how to properly "document discipline"; and (3) adopt
a company policy of providing written notice within 10 days of placing negative
information in an employee's personnel records. |
Illinois Passes Law Limiting Employer Use of Credit History
Effective January 1, 2011,
Illinois employers will be prohibited from (1) inquiring about an applicant's
or employee's credit history, (2) ordering or obtaining an applicant's or
employee's credit report from a consumer reporting agency (e.g., background
check vendor), and (3) making employment decisions based upon an applicant's or
employee's credit history or credit report.
Certain banks, insurance businesses, debt collectors and state/local government agencies are excluded from coverage under Illinois' new Employee
Credit Privacy Act (ECPA).
Similarly, even if an employer is not excluded from
coverage under the ECPA, the law does not prevent an inquiry or employment
action if a satisfactory credit history is an "established bona fide
occupational requirement for a particular position or a particular group of an
employer's employees." In order for a satisfactory credit history to be a "bona
fide occupational requirement," at least one of the following circumstances
must be present:
- State
or federal law requires bonding or other security covering an individual
holding the position.
- The
duties of the position include custody of or unsupervised access to cash
or marketable assets valued at $2,500 or more.
- The
duties of the position include signatory power over business assets of
$100 or more per transaction.
- The
position is a managerial position which involves setting the direction or
control of the business.
- The
position involves access to personal or confidential information,
financial information, trade secrets, or State or national security
information.
- The
position meets criteria in administrative rules, if any, that the U.S.
Department of Labor or the Illinois Department of Labor has promulgated to
establish the circumstances in which a credit history is a bona fide
occupational requirement.
- The
employee's or applicant's credit history is otherwise required by or exempt
under federal or State law.
It should be noted that the ECPA
does not prohibit employers from conducting a thorough background investigation,
which may include obtaining a report and/or investigative report (without
information on credit history) pursuant to the Fair Credit Reporting Act.
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Bureau of Labor Statistics Releases 2009 Data on Employment Status
of Persons with a DisabilityOn August 25, 2010, the Bureau of
Labor Statistics issued its first release focusing on the employment status of
persons with a disability. The information in the release
was obtained from the Current Population Survey (CPS), a monthly sample survey
of about 60,000 households that provides statistics on employment and
unemployment in the United
States. The following are some highlights
from the 2009 data: - For all age groups, the proportion of the population employed was much lower for persons with a disability than for those with no disability. (See table 1.)
- The unemployment rate of persons with a disability was well above the rate of those with no disability. (See table 1.)
- Persons with a disability were over three times as likely as those with no disability to be age 65 or over. (See table 1.)
- Nearly one-third of workers with a disability were employed part time, compared with about one-fifth of those with no disability. (See table 2.)
The full release can be found at www.bls.gov/news.release/disabl.nr0.htm.
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