2010 New York State Legislative Update

During the 2010 Legislative Term, the New York State Legislature enacted and Governor David A. Paterson signed a number of laws relevant to New York employers. This legislation is summarized below. We also describe other significant bills passed by the Legislature and vetoed by the Governor or considered but not passed by the Legislature.

Enacted Legislation

• Assault on Nurse in Line of Duty Made a Felony, signed August 13, 2010, effective November 1, 2010 - This law amends the New York State Penal Law to make an assault on either registered or licensed practical nurses a class C or D felony. The New York State Nurses Association stated, "[T]his will encourage employers to take action to address violence that occurs in the workplace and signals to nurses that it's time to speak up about violence they experience in the workplace."
• Construction Industry Fair Play Act, signed August 27, 2010, effective October 26, 2010 - Reflecting concern over the misclassification of workers in the construction industry, this new law creates a presumption that construction workers are employees unless three criteria are met: they are "free from control and direction in performing the job, both under his or her contract and in fact;" their services "must be performed outside the usual course of business for which the service is performed;" and they are "customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue." Construction industry employers are mandated to provide workers with notification of their classification status. Employers who violate the law are subject to monetary and criminal sanctions.
• Domestic Workers Bill of Rights, signed August 31, 2010, effective December 1, 2010 - The first state law of its type in the nation, this measure provides domestic workers with the right to overtime pay after 40 hours of work per week, or 44 hours for in-home workers, a rest day once every calendar week (or overtime pay if the day of rest is waived by the worker), three paid days of rest per year after a worker has been employed for one year, protection from harassment under the New York State Human Rights Law and the same right to statutory disability benefits as other workers. The legislation also authorizes a study by the Commissioner of Labor to determine whether extending collective bargaining rights to domestic workers is practical. The legislation resulted from a legislative compromise and did not include other measures considered by the Legislature, such as notice of termination, paid vacation and paid sick days.
• Funeral Leave Benefits for Same-Sex Couples, signed August 30, 2010, effective October 29, 2010 - If an employer grants funeral or bereavement leave to an employee for the "death of a spouse, child, parent or other relative, [it] shall not deny the same leave for the death of an employee's same-sex committed partner." Same-sex committed partners are defined as those "who are financially and emotionally interdependent in a manner commonly presumed of spouses."
• Health Benefits for Volunteer Firefighters and Ambulance Workers, signed May 5, 2010, effective May 5, 2010 - This law enables municipalities to offer health insurance and services to volunteer firefighters and ambulance workers.
• New Quarterly Wage Report and New Hire Requirements with Respect to Child Support Orders, signed July 15, 2010, effective July 15, 2011 - For the purpose of facilitating child support, this law compels employers to report on both quarterly wage and new hires reports whether employer-sponsored family health insurance is available.
• Unemployment Insurance for Non-Participating Employees Affected by Strike, signed July 15, 2010, effective July 15, 2010 - This law removes the compulsory seven-week waiting period for benefits applicable to employees out of work due industrial controversies emanating from other employers or from a bargaining unit of which they are not a member, as long as such employees are not participating in the industrial controversy. The law also reiterates that if a permanent replacement is hired by an employer, the waiting period is no longer applicable even if the individual is an active participant in the industrial controversy.

Vetoed Legislation

• Absence/Lateness Due to Worker's Response to Emergency as a Volunteer Ambulance or Firefighter, vetoed August 30, 2010 - This bill would have compelled employers to excuse an employee's absence or lateness because he or she was responding to an emergency as either an ambulance worker or firefighter.
• Discrimination Against Victims of Domestic Violence, vetoed August 13, 2010 - This bill would have expanded the definition of victim of domestic violence for purposes of the New York State Human Rights Law's anti-discrimination provision and would have provided employers with an affirmative duty to reasonably accommodate a victim of domestic violence.
• Filing Suit after the New York State Division of Human Rights Dismisses Complaint for Administrative Convenience, vetoed July 30, 2010 - This bill would have enabled an aggrieved individual to file a lawsuit in a court of competent jurisdiction within three years after a complaint was dismissed by the New York State Division of Human Rights for administrative convenience purposes. The statute of limitations remains three years from the alleged discriminatory action.

Legislation Considered by Legislature

• Anti-Bullying Legislation - Passed by the state Senate but held in the Assembly's Labor Committee, this bill would have created a private cause of action for any employee who was subject to an abusive work environment.
• Limitation on Use of Credit History for Employment Purposes - This legislation would limit employers from obtaining such information unless it is directly job-related, and even for such positions, prohibit the use of such information as a determining factor in any disqualification decision.
• Paid Family Leave - Once again considered, legislation providing for an extension of short-term disability benefits to include paid benefits for family leave purposes, such as bonding with a child, failed to pass.
• The Wage Theft Protection Act - Passed by the state Assembly but not the Senate, this legislation would modify longstanding New York State wage and hour standards. The proposed provisions include: (i) a requirement that employers pay employees one hour of base pay for a missed meal period (plus pay for time worked, of course); (ii) liquidated damages equal to 100 percent of monies due for wage payment violations; and (iii) employee rights to inspect payroll records.

Jackson Lewis attorneys are available to discuss these newly-enacted laws and any appropriate modifications to current workplace policies practices they may require.