Recent developments in the law have placed new obligations on New York employers. This Alert summarizes the new requirements.
Section I describes employers’ obligations under the recently enacted New York State Worker Adjustment and Retraining Notification Act (“NYS-WARN”) covering mass layoffs, plant closings, and relocations. NYS-WARN will take effect on Feb. 1, 2009.
As reported in a previous SRZ Alert, “Recent Developments in Labor and Employment Law“ (March 17, 2008), the New York legislature passed laws requiring New York employers to provide accommodations for nursing mothers and to grant leave time for those employees who wish to donate blood. Recently, the New York Commissioner of Labor promulgated guidelines on employers’ obligations under these laws, including the applicable notice requirements. Section II of this Alert discusses the guidelines regarding nursing mothers. Section III discusses the guidelines regarding blood donation leave. The responsibilities set forth in all these guidelines are effective immediately.
On July 8, 2008, New York Governor David Paterson signed a set of laws designed to reduce the occurrence of identity theft. Among these laws are measures to better protect employee privacy. Section IV describes employers’ obligations under these new laws, which will take effect on Jan. 4, 2009.
In August 2008, Governor Paterson signed NYS-WARN into law. While mirroring many of the terms and provisions of its federal counterpart, the Worker Adjustment and Retraining Notification Act (“WARN”), NYS-WARN is broader with respect to the length of the advance-notice period employers must afford employees, the scope of covered events requiring notice and the breadth of covered employers.1 In addition, NYS-WARN provides an administrative-enforcement component that WARN lacks.
NYS-WARN prohibits an employer from ordering “a mass layoff, relocation, or employment loss,” unless it gives 90 days prior written notice to “affected employees,” their union representatives, the New York State Department of Labor and “local workforce investment boards” (comprising local elected officials, business leaders, union leaders, community activists and educators). “Mass layoff” is a workforce reduction that causes an “employment loss at a single site of employment” during a 30-day period for 25 or more full-time employees, representing at least 33% of all employees (excluding part-time employees), or 250 or more full-time employees. This definition does not apply where the layoff was the result of a plant closing. A “relocation” is “the removal of all or substantially all of the industrial or commercial operations of an employer to a different location 50 miles or more away.” “Affected employees” means “employees who may reasonably be expected to experience an employment loss as a consequence of a proposed plant closing or mass layoff.”2 An “employment loss” is defined as when an employee is: (i) terminated without cause, voluntarily departs, or retires; (ii) an employer initiates a mass layoff which lasts for more than 6 months; or (iii) an employer reduces work hours by fifty percent “during each month of any consecutive 6 month period.” The employer’s notice must include the same content as required by WARN.
A. Differences from WARN. Although both the NYS-WARN and WARN laws address the same issues, NYS-WARN gives more expansive protections to employees. For instance, it covers employees who retire as a result of a plant closing or mass layoff. It also provides for a more stringent 90-day advance written notice period, while WARN mandates only 60-days advance notice. NYS-WARN covers employers with 50 or more employees whereas WARN only applies to employers with a minimum of 100 full-time employees. (Both Acts have specific provisions for counting part-time employees.) NYS-WARN directs employers to give advance written notice of a mass layoff of 25 or more full-time employees, representing at least 33% of the workforce, or 250 or more full-time employees, during any 30-day period, whereas WARN requires advance written notice only when 50 full-time employees, constituting at least 33% of the workforce, or 500 or more full-time employees, will lose their jobs. Under NYS-WARN, 90-day advance written notice must be issued if a “plant closing” forces 25 employees to lose their positions over any 30-day period; WARN requires a minimum reduction of 50 employees. Both laws allow private causes of action, but NYS-WARN also permits the New York State Department of Labor to administratively enforce its provisions. Under NYS-WARN, notices go to additional government offices and to all affected union members as well as the union itself.
B. Similarities to WARN. Despite the aforementioned differences, NYS-WARN and WARN overlap in several key areas. Each penalizes employers $500 for each day they fail to give employees requisite advance “written notice.” Additionally, both Acts require employers to compensate separated employees for back pay and the cost of any benefits to which employees would have been entitled for the period when notice should have been given. Similar to WARN, NYS-WARN waives the advance written notice requirement in the case of a plant closing if: (i) the employer could not reasonably foresee that notice would be required; (ii) a natural disaster caused the plant closing or mass layoff; (iii) a strike or lockout caused the plant closing or mass layoff; or (iv) in the case of a plant closing the employer “actively [sought] capital or business” at the time notice was required in order to postpone the relocation or termination, and consequently failed to notify his employees, because the employer reasonably believed that such notice would scuttle those efforts.
C. Discretionary Enforcement. NYS-WARN confers significant discretionary enforcement powers in the New York State Commissioner of Labor and the state courts. The Act empowers the Commissioner of Labor to reduce any penalties imposed upon offending employers if the Commissioner determines the employer violated the Act in good faith. When exercising this discretion, the law directs the Commissioner to evaluate: (i) the size of the employer; (ii) the hardships imposed on employees; (iii) the employer’s efforts to mitigate the violation; and (iv) the reasons for the employer’s good faith belief. State courts also may reduce any penalties imposed upon employers if they “determine that an employer conducted a reasonable investigation in good faith, and had reasonable grounds to believe that its conduct was not a violation” of NYS-WARN.
II. Guidelines Regarding Nursing Mother Accommodations
Section 206-c of the New York State Labor Law requires employers to provide accommodations for nursing mothers. Specifically, employers must provide reasonable unpaid break time, or permit an employee to use paid break time or meal time, each day to allow an employee to express milk for her nursing child. A nursing mother has this right for up to three years following childbirth. Employers must make a reasonable effort to provide a room or other location in close proximity to the employee’s work area where the employee can express milk privately.
The New York Department of Labor’s new guidelines provide as follows:
A. Notice to Employees. Employers must provide written notice to employees who are returning to work following the birth of a child of their rights under the law. The notice may be provided individually to affected employees or to all employees through a general publication of the notice in the employee handbook or by posting the notice in a central location on the employer’s premises. Employers may require employees to provide advance notice of their need to receive accommodations to express milk.
B. Reasonable Unpaid Break Time. The guidelines provide that each break should generally be no less than twenty minutes, and no less than thirty minutes if the location of where the employee has to express milk is not in close proximity to the employee’s work station. (See Section II.C. of this Alert for information regarding proximity.) The break time must be available to the employee during the basic work week and during any additional overtime hours worked. Employees may elect to take shorter unpaid breaks, and may use the unpaid break time so that it runs concurrently with paid breaks or meal periods. Employees also may elect, and employers must allow, employees to work before or after their normal shift to make up the amount of time used for the unpaid break for expressing milk. An employer may require an employee to postpone a scheduled break for the purposes of expressing milk for no more than thirty minutes if she cannot be spared from her duties until appropriate coverage arrives.
The number of breaks an employee may take for the purpose of expressing milk depends on several factors, including, but not limited to, the total amount of hours the employee is separated from the nursing infant, and the employee’s physical needs.
C. Reasonable Efforts, Privacy, & Close Proximity. Labor Law Section 206-c provides that employers must make “reasonable efforts” to provide a room or location where employees may express milk. The guidelines interpret “reasonable efforts” to mean that the employer must provide a room or location so long as it is not impracticable, expensive, or inconvenient for the employer to do so. The room, which cannot be a restroom or toilet stall, should be specifically dedicated to the expression of milk and the employer must establish a schedule for multiple affected employees who need access to the room. Employers that cannot provide a dedicated lactation room or other location may use a vacant office or other available room on a temporary basis so long as the room is not accessible to the public or other employees while the nursing employee is using the room.
The room used for the purposes of expressing milk must be private. The guidelines define “private” to mean that the room cannot be open to other individuals frequenting the business (i.e., customers, employees, other members of the general public, etc.). The room must have a functional lock, and if a functional lock is not available, an employer may post a sign indicating that the room is in use and is not accessible by others.
In addition to ensuring the privacy of nursing employees, employers must maintain the room’s cleanliness, and it should be well lit. If the room has a window, it should be covered with blinds, a curtain, or some other covering. The room must also contain a chair and a small desk, counter, table, or other flat surface. Employers also are encouraged to supply an outlet, clean water supply, and access to a refrigerator for the purposes of storing expressed milk; however, employers are not responsible for the safekeeping of expressed milk stored in the employer’s refrigerator. Employees are required to store the milk in closed containers and must bring the milk to their home each evening.
The room must be within walking distance and walking to the room cannot appreciably lengthen the break time. Employers located in shared work areas such as office buildings, malls, and similar premises may coordinate with each other to establish a dedicated lactation room; provided, however, the room must be located at a reasonable proximity from the employees using the room. Use of a common lactation room does not affect an employer’s obligations to accommodate nursing mothers.
To view the guidelines regarding the rights of nursing mothers to express milk in the workplace, go to the following website: http://www.labor.state.ny.us/workerprotection/laborstandards/PDFs/___FINAL.pdf
III. Guidelines Regarding Blood Donation Leave
Section 202-j of the New York State Labor Law provides that employers with at least twenty employees are required to grant at least three hours of leave in any 12-month period to any employee seeking to donate blood.
The following summarizes the recently enacted guidelines that govern blood donation leave:
A. Notice to Employees. The guidelines provide that covered employers must provide written notification to its employees of their right to take blood donation leave. Such notice must be provided in a manner to where the employees will see it, such as by posting it in a prominent area on the employer’s premises where employees congregate, or including it in an employee’s paycheck, mailing, or in the employee handbook. If the employer provides the notice directly to its employees, it must do so at the time when the employee is hired and annually thereafter (no later than January 15th of each year) to all employees.
B. Notice to Employers. Employers may require employees to give reasonable notice of their need for leave to donate blood. If the leave is for off-premises blood donation (as discussed below in Section III.C. of this Client Alert), reasonable notice may consist of providing at least three working days notice. If the leave is for a blood donation leave alternative (as discussed below in Section III.D. of this Client Alert), reasonable notice may consist of two days notice. If the employee has an essential position whereby three days notice to the employer is not adequate, the employer must require notice no longer than is necessary to feasibly fill the position, but in no case longer than ten working days. Employers must provide accommodations for a shorter notice period if an employee experiences an emergency requiring him/her to donate blood for his/her own surgery.
C. Off-Premises Blood Donation. Employers must permit employees donating blood at an off-premises location at least one leave period per calendar year of three hours duration during the employee’s regular work schedule. Employers are not required to allow off-premises donation leave to accrue if not used during the calendar year. Employers may require employees making off-premises blood donation to show proof of their blood donation.
Off-premises blood donation leave is not required to be paid leave.
D. Blood Donation Leave Alternatives. Employers may elect alternative methods for blood donation leave at a convenient time and place set by the employer and may include a blood drive on the employer’s premises. The guidelines define “convenient time and place set by the employer” as being a time that does not require the employee to attend outside of his/her normal work hours and that does not require the employee to travel to a location which is not a reasonable travel distance for employees. Blood donation leave alternatives are subject to the following additional requirements:
- The leave alternative must be paid leave without the use of vacation, personal, sick or other existing leave accruals.
- It must be given twice per calendar year.
- Employees donating blood during a blood donation leave alternative must be allowed sufficient leave time to donate blood, recover and return to work.
Notice of any blood donation alternative must be posted in the workplace at least two weeks before the alternative. To count towards the two blood donation leave alternatives in the calendar year, (i) at least two such alternatives provided during the calendar year must take place at least sixty days apart, and (ii) notice of the final leave must be provided to the employees prior to Dec. 1 of that year. Blood leave alternatives cannot be offered during times when a significant number of employees are out of the office (i.e., during the last week of December or around significant holidays).
If an employee provides the employer with prompt notice that he/she was not able to participate in a blood donation leave alternative because the employee is or was on some other leave, and the employer has not provided the employee with the opportunity to participate in at least two blood donation leave alternatives during work hours in a calendar year, the employer must either make available to the employee another blood donation leave alternative, or allow the employee to take leave to make an off-premises blood donation.
To view the guidelines regarding blood donation leave, go to http://www.labor.state.ny.us/workerprotection/laborstandards/PDFs/Blood%20guidelinesFINAL.pdf
IV. Identity Theft Prevention and Personal Identifying Information
In addition to the restrictions placed on employers with regards to employees’ social security numbers—see “Recent Developments in Labor and Employment Law“ (SRZ Client Alert, March 17, 2008)—and in an effort to protect employees’ personal information, a recently enacted identity theft law amends the labor law to place additional requirements on employers. Specifically, the law provides that employers cannot communicate employees’ “personal identifying information” to the general public. “Personal identifying information” means employees’ personal, non-business related information, including the their social security numbers, home addresses and/or telephone numbers, personal email addresses, Internet identification names and/or passwords, parents’ surnames prior to marriage and drivers’ license numbers.
In addition to not communicating employees’ social security numbers to the general public, an employer cannot (i) publicly post or display employees’ social security numbers, (ii) visibly print social security numbers on any identification badge or card (including a time card), (iii) place social security numbers in a file with unrestricted access, or (iv) embed social security numbers in or on a card or document.
Employers that knowingly violate this law may receive civil penalties of up to $500. The law makes clear that a violation is presumed to be “knowing” if the employer does not put in place any policies or procedures to safeguard the personal identifying information, which includes notifying relevant employees with access to personal identifying information of the law’s requirements.
Employers should review their policies to ensure that they are complying with all applicable notice requirements. New York employers considering mass layoffs or plant closings should review and must comply with both WARN and NYS-WARN. Additionally, employers should not discriminate against employees choosing to express milk at the workplace or who wish to take leave to donate blood. Employers should ensure they have policies and procedures in place to protect their employees’ personal identifying information.