The NY State Legislature Passed an Election Law
Time off to vote for employees was part of the legislation that the NY State Legislature passed in April of 2019.
The name of the law is the New York State Election Law and it went into effect immediately.
What Does the Time Off to Vote Mean for Employers?
Based on the new law, employers must allow their employees who are registered voters up to three hours of time off to vote. The employee will lose no pay for the three hours and this applies to voting at any election.
Guidelines for the Time Off
The employer must allow the time off only at the beginning or end of the employee’s work shift. The employer either designates the time or the employee and employer can mutually agree on the time.
The employee must notify the employer about taking time off to vote two working days before the Election Day.
Posting a Notice of the NY State Election Law
Employers must post in the workplace a notice that states the provisions of the NY State Election law. They must post it conspicuously no less than 10 working days before every election. In addition, they must keep the notice posted until the election polls close that day.
What Might Have Prompted the New Law?
According to an article in The New York Times, the mid term elections in 2018 in New York favored incumbents. New York was the only state in the country that held separate state and federal primary elections. Two separate voting days made it more difficult for voters to turn out to vote. In addition, New York does not have the options of early voting, voting by mail, nor same-day voter registration.
By comparison, some of New York’s voting laws were much more restrictive than laws in other states.
The New York State Election Law is one response taken by a more liberal legislature to effect change. More changes may be on the way.
At Stephen Hans & Associates, our attorneys work to stay up-to-date with legal changes. We like to let employers know about them so they can avoid employment law issues. We also represent business owners in employment litigation.
Working off the clock can be problematic for an employer. One reason is that time clocks or time sheets exist to document an employee’s work hours. When workers do not punch in, the book keeping of hours worked becomes nebulous. However, aside from that, employees can be subject to wage and hour lawsuits, penalties and other additional expenses when they fail to pay employees for time worked.
What Is “Working Off the Clock”?
Why Is Working Off the Clock Illegal?
Examples that Qualify as Working Off the Clock
If you call employees outside of work or send them work related emails that they must answer, you would be encouraging unpaid work or work done “off the clock.”
If you allow your employees to come in early or stay late to finish their work tasks, you can run into problems as an employer. Perhaps your restaurant worker is cleaning up or your laborer is simply dropping off equipment at another site outside of work hours. Off-the-clock work includes employees who work outside of the scheduled hours, for example to get a worksite ready for the production day. Workers who correct errors in paperwork past the time they should’ve gone home also qualify as working off the clock. Even having an employee wait to receive an assignment, despite the fact the employee is not doing anything but waiting, qualifies as work time.
How Fissuring Is Changing the Work Environment
Fissuring in the workplace is a relatively new term. You may have heard about fissuring, a term coined by David Weil. He and Tanya Goldman in the article “Labor Standards, the Fissured Workplace and the On-Demand Economy” explain fissuring as follows:
It “means that in more and more workplaces, the employment relationship has been broken into pieces often shifted…to individuals who are treated as independent contractors.”
Other terms have become prevalent that also reflect this employment change. These are terms such as standard employment, non-standard employment, alternative work arrangements, independent contractors and contract employees.
The business models that typically accomplish fissuring use:
- Temporary agencies
- Labor brokers
- Third-party management
What Does Fissuring Mean for Employers and Employees?
As stated by an article in The American Prospect, the workplace is undergoing a change, and fissure is what is happening to the U.S. workforce.
Back in the day, an employee worked for a company, received benefits, stayed with the company long-term and received a pension for retirement. The average worker often spent a lifetime working for the same company.
In an effort to reduce labor costs and also lasting ties to workers, companies have implemented a variety of employment strategies. Strategies include hiring through apps, employing temp workers and freelancers along with contracting out and in some cases, misclassifying employees.
Today, many people have two or three part-time jobs because main jobs are not available. Multiple part time jobs are necessary for them to make financial ends meet.
Yet, various wage changes have also emerged as a result of the fissured workplace. New York, New Jersey, California, Illinois, Maryland, Massachusetts and Connecticut have all enacted $15 minimum wage laws.
The History Behind the Wage Increases
Governor Cuomo of New York created a wage board and held hearings throughout New York. At the hearings, many fast-food workers testified that they couldn’t survive on the $8.25 minimum wage. The New York legislature enacted legislation to raise wages to $15 per hour. Subsequently, the New York City’s Taxi and Limousine Commission engaged in a similar action and raised wages to a minimum of $17.22 per hour for app -based drivers.
The newest emerging trend is for cities to create boards that help workers raise their pay. In this effort, the boards appear to be taking on the previous function of labor unions, which were known in the past for working to equalize pay.
As Bob Dylan sang back in the 1960s, “The Times, They Are a Changin’.“
At Stephen Hans & Associates, we work with employers to help them comply with employment laws and to deal with employment issues.
Drug Testing: New York City ‘s New Law
A ban on pre-employment testing for marijuana and THC recently became law in New York City. Pre-employment testing for marijuana and THC had long been an accepted standard in the employment process for certain industries. However, the legal landscape is changing. With the legalization of medical marijuana (and recreational marijuana in certain states), employers must re-evaluate certain company policies. New York is no exception.
On May 10, New York City passed a law that prohibited employers, labor organizations and employment agencies from conducting pre-employment testing for THC. THC is an active ingredient in marijuana and cannabis. The law goes into effect in one year, on May 10, 2020. This time interval provides NYC employers with time to prepare.
Industries Exempt from the Ban on Pre-Employment Testing for Marijuana and THC
According to JDSupra, industries that are safety-sensitive are not subject to the new law. Some of these industries include:
- Police and law enforcement positions
- Jobs requiring OSHA certification or construction safety training under New York state laws
- Commercial driver’s license positions
- Positions involved with the supervision or care of children, medical patients or vulnerable persons
- Positions capable of significantly impacting the health or safety of employees or the public
Employees applying for state or federal jobs would still be subject to pre-employment drug testing. This would include state employees, truck drivers, pilots or contractors.
The Reason for the Ban on Pre-Employment Testing
Legislators considered the practice discriminatory for job applicants. Washington D.C. has also passed a law that prohibits employers from testing for marijuana before extending a job offer. The NYC law is more comprehensive because at no point prior to hiring may the prospective employer require the drug test.
However, once the company hires the applicant, then the individual is an employee. Companies can test for drugs if an employee appears to be under the influence of marijuana while working.
Our attorneys at Stephen Hans & Associates stay up-to-date with legal changes that affect employers. We also represent business owners in employment litigation
New York Laws that Govern Paid and Unpaid Interns
Some businesses hire interns or take on unpaid interns. This may seem like a good idea, and the costs of paying an intern are usually less than a regular worker. However, if taking on an unpaid intern, it is vital that the business owner understands the requirements.
NY law defines the rules that differentiate an employee from an unpaid intern.
If the employment relationship does not meet all the 11 criteria for an unpaid intern, then the employer must pay the intern based on minimum wage law.
NY Law for Hiring Unpaid Interns
Under New York Labor Law, the 11 criteria are as follows:
- The training must be similar to training in an educational program.
- The training is for the intern’s benefit. An example would be that the academic institution would give the student credit for the internship. Any benefit to the employer would be incidental.
- The intern does not replace regular workers and must work under close supervision. When interns receive the same supervision as other employees, it indicates an employee relationship and not an intern relationship.
- The employer does not gain an advantage from the intern’s work. In fact, the intern may sometimes actually impede the business’s operations.
- Once the internship concludes, the intern is not necessarily entitled to a job.
- The intern receives written notification about not being paid any wages.
- Persons who supervise the intern must be competent, knowledgeable and have adequate experience to meet the educational goals and requirements of the training program.
- Interns do not receive employee benefits (i.e. health and dental insurance, discounted or free goods or services or pension/retirement credit).
- The intern is receiving general training for the type of industry or business. The intern is not receiving training for a specific job with the employer who is offering the program.
- The employer uses a different screening process to acquire an unpaid intern than the process being used to hire employees. The process is based on an educational program and not a job.
- The advertisements, postings or solicitations for interns focus on education rather than employment.
If you have concerns about hiring interns, our attorneys at Stephen Hans & Associates are glad to advise you. We also represent employers in all types of employment related disputes.
New York City Has Proposed a Biometrics Privacy Law
Biometrics is a new technology identification system being used by a variety of industries for various purposes. The primary means of identification include:
- Retinal scans
- Facial recognition
- Iris scans
Businesses have started using biometrics for time clocks, for entry to secure areas and to login to phones and computers. To this degree, biometrics directly relates to employment situations.
States with Biometric Privacy Laws
While new technology is often uncharted territory from a legal perspective, three states have already adopted biometric privacy laws: Illinois, Texas and Washington. What the laws have in common is requiring consent before collecting biometric information. Illinois law is the most restrictive and requires employers to destroy the employee’s biometric information after a certain period of time if no longer employed by the business.
New York City Proposed Biometric Privacy Law
The National Law Review published an article in January 2019 that described the proposed bill under consideration by the New York City Council. The bill would require businesses to give notice to customers if they are collecting biometric identifier information, and it included a provision that if a person’s information was collected, retained, converted, shared or stored in violation of the law, the person had the right to take legal action.
Under the proposed NYC law, business owners using biometrics would be required to do the following:
- Post a clear and conspicuous sign in plain language that explains the business is collecting, retaining, converting, storing and sharing biometric information.
- Business must also make the following available online:
- How long they are retaining or storing the information
- The type of biometric information collected
- Purpose of the collection
- Whether they are sharing information with third parties
At this point, employers should be aware of the fact that a biometric privacy law has been proposed. Currently, NY State Labor Law Section 201-a states that unless allowed by law, no employer can require a person to be fingerprinted as a condition for securing employment or continued employment.
Our attorneys at Stephen Hans & Associates stay up-to-date with legal changes that affect employment. We represent business owners in employment litigation matters.