On December 13, Governor Paterson signed the Wage Theft Prevention Act (WTPA), which takes effect April 12, 2011. It is important that employers familiarize themselves with the new law's provisions prior to the effective date since the WTPA increases the record-keeping duties placed on employers and increases the penalties employers will have to pay for violations of the labor law.

Currently, NY Labor Law 195(1) requires employers inform all new hires in writing of their rate of pay, payday, and overtime rate. The WTPA requires that additional information be included on the written notice, such as the basis of the wage payment (i.e., by the hour, day, shift, week, salary, or commission) as well as whether any allowances will be claimed as part of the minimum wage (e.g., for tips, meals, or lodging). The notice must also provide any "doing business as" names for the organization.

Employers must provide new employees with the written notice at the time of hiring, and each year employers must provide an additional written notice reiterating the employee's pay rate and other mandated information (and obtain a signed and dated acknowledgement of receipt from the employee) by February 1. The notice must be provided in both English and the language identified by the employee as his/her primary language, and employers must keep this notice for six years. The WTPA also increases the length of time an employer must maintain payroll records from three to six years.

The WTPA requires employers notify employees at least seven days before any change in the information contained in the notice takes effect unless that change is reflected on the employee's pay stubs. Pay stubs must now include the following information: dates of work covered by the payment, employer name, address and telephone number, employee name, hours worked, rates paid and basis of the rate (e.g., hour, shift, day, week), gross wages, credits or allowances claimed (e.g., tips, meals), deductions and net wages. The WTPA calls for the Department of Labor to develop dual-language templates to assist employers in complying with the new law's requirements.  We will notify clients and colleagues of the firm once these templates have been posted on the New York State Department of Labor (NYSDOL)'s website.

Finally, the WTPA increases the civil and criminal penalties for violating certain labor law violations:  

·        If an employer fails to provide the pre-employment notice (including all the required information) within 10 days of the first day of employment, the employee may recover in a civil action $50 in damages for each workweek the violation occurs or continues to occur, not to exceed $2,500, as well as costs and reasonable attorneys' fees. Employers who fail to provide the required notices/wage statements to current employees could similarly be subject to a civil action and liable for up to $100 per week, not to exceed $2,500.

·        Where an employer fails to pay an employee the proper amount of wages, the WTPA provides for liquidated damages in the amount of 100% of the wages owed unless the employer can show a "good faith basis" that the method of payment was lawful. This is an increase from the 25% liquidated damages currently allowed under New York Labor Law. The WTPA also provides for an additional assessment of damages for willful or egregious violations, as well as an additional 15% in liquidated damages if the employer defaults on paying a final judgment for more than 90 days.

·        The WTPA expands criminal liability for failure to pay proper wages is also to partnerships and limited liability companies, in addition to corporations and their officers and agents.

Employers should review their wage and hour practices to ensure compliance with the WTPA prior to April 12, 2011.

EEOC ISSUES FINAL RULE ON IMPLEMENTATION OF THE GENETIC INFORMATION NONDISCRIMINATION ACT (GINA)

In November, the EEOC issued its final rule to implement Title II of the Genetic Information Nondiscrimination Act (GINA). The EEOC's regulations take effect January 10, 2011. Title II of GINA was enacted to protect applicants and current and former employees from discrimination based on their genetic information. GINA also prohibits an employer from requesting, requiring or purchasing genetic information.

GINA and the EEOC's regulations contain a "water cooler" exception to acquiring genetic information (such as family medical history) when it is done so inadvertently.  Under such circumstances, the acquisition of genetic information will not run afoul of GINA.  Examples of the "water cooler" exception include (but are not limited to) where a manager/supervisor learns genetic information about an individual:

·        by overhearing a conversation between the individual and others;

·        by receiving it from the individual or third parties during a casual conversation, including in response to an ordinary expression of concern that is the subject of the conversation (e.g., "how are you?" or "did they catch it early?");

·        without ever having solicited or sought the information (e.g., where a manager receives an unsolicited e-mail about the health of an employee's family member from a co-worker); or

·        from a social media platform which he or she was given permission to access by the creator of the profile at issue.

Employers may also obtain employee medical information pursuant to another law, such as where an employer requires an employee to submit medical certification for FMLA leave or documentation of a disability and the need for a reasonable accommodation under the ADA.  In such cases, the employer must warn the employee and/or healthcare provider not to provide genetic information, including family medical history.  Under such circumstances, if the employer still receives genetic information, it will be protected by the "safe harbor" exception in the EEOC's final rule. The EEOC regulations provide the following sample "safe harbor" language:   

"The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. `Genetic information,' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services."

Employers should consider including this notice in all requests for employee medical information from this point forward to reduce their exposure to GINA claims.

Aside from this "water cooler" exception, an employer's acquisition of genetic information can also be considered inadvertent where an employer's request is "not likely to result in a covered entity obtaining genetic information" (e.g., where an overly broad response is received in response to a tailored request for medical information).

GINA also allows employers to obtain an employee's genetic information as part of the employer's "health or genetic services," including a "voluntary" wellness program. The regulations clarify when a wellness program is considered "voluntary."

If an employer does come into possession of genetic information, it must keep that information confidential. The information cannot be preserved in an employee's personnel file, but may be maintained in a separate medical file (as currently required under the ADA) for the employee. The employer may only disclose the information in very limited circumstances.

More information on GINA and the EEOC's final regulations can be found at http://www.eeoc.gov/laws/types/genetic.cfm.