2006 New York State Legislative Wrap-Up

August 24, 2006

During its recently concluded legislative session, the New York State legislature considered various pieces of legislation relevant to New York State employers. Below is a summary of the major pieces of legislation: (i) passed by the legislature and signed into law by New York State Governor George Pataki; (ii) passed by the legislature but vetoed by Governor Pataki; and (iii) considered but not passed by the legislature.

Legislation Signed Into Law

1. Workplace Violence-Prevention Bill: This bill, which Governor Pataki signed on June 7, 2006 and is effective as of October 2006, is intended to reduce the risk of workplace violence for public employees. The bill requires public employers with more than 20 employees to assess risk and develop and implement a written plan of action to prevent potential workplace violence.
2. Disposal of Personal Records Law: On June 9, 2006, Governor Pataki signed this legislation which requires New York state employers to properly dispose of records containing personal information through one of the following means: shredding; destruction; modification; or other reasonable action to ensure that no unauthorized person will have access to the personal information. This legislation, which is effective December 2006, was passed as a part of a series of laws to protect individuals from identity theft. Similar to the New York Information Security Breach Act, passed by the legislature and signed into law in 2005, this Act imposes affirmative obligations on private sector employers. New York State employers must implement record destruction protocols. Please see article, "New York Law Now Requires Specific Procedures for Disposing of Personal Employee Information," on http://www.jacksonlewis.com/.
3. Employee Privacy: This legislation, which was effective July 5, 2006, amended the New York State Labor Law and prohibits employers from video recording employees in work site restrooms, locker rooms, or employer designated changing rooms without a court order. Despite this legislation, New York State employers are not prohibited from video recording employees, surreptitiously or otherwise, in other areas of the workplace.
4. World Trade Center – Rescue, Recovery and Clean-Up: In August 2006, following the close of the legislative session, Governor Pataki signed into law this legislation which provides first responders on September 11, 2001 with expanded rights to seek benefits for attendant injuries and illnesses.
5. Leave for Military Spouses: On August 16, 2006, Governor Pataki signed this legislation which requires New York State employers with 20 or more employees to allow spouses of members of the armed forces of the United States, National Guard or reserves who has been deployed during a period of military conflict up to ten days unpaid leave by the employer. The new law, which is effective immediately, requires that the leave only be taken when the military personnel is on leave from the armed forces, guard or reserves.
6. Employers Required to be Advised of Availability of Free Labor Posters: This law, enacted on August 16, 2006 and effective immediately, requires that sellers of any New York State labor printed materials intended to be posted in places of employment must provide notice to the purchaser that the notices and postings are also available free of charge from the government office having jurisdiction over the required notices or postings.

Legislation Vetoed By Governor Pataki

1. Taylor Law Amendments: The "Taylor Law" prohibits public sector employees from engaging in strike activities and poses significant penalties for violations of the law. Following the December 2005, New York City Transit Strike, due to significant lobbying from labor organizations, the legislature passed legislation amending the law. Such amendments would have reduced the penalty for violations of the statute from 2 days pay for every day that an illegal job action occurs to 1 days pay for each such day that the statute is violated and mandated wage increases based on a finding of bad faith bargaining by the public sector employer. Governor Pataki vetoed the bill as "seriously flawed" and erroneously based on the presumption that public employers refuse to negotiate in good faith.
2. Re-classification of Home Day-Care Bill: The Governor vetoed legislation that would have re-classified home day-care providers who earn at least a portion of their income from state subsidies as state employees, and thus be subject to the state's Taylor Law. The changes would have added an estimated 52,000 workers to the state payroll, and cost taxpayers more than $75 million a year.
3. Prevailing Wage Bills: The Governor vetoed three prevailing wage bills that would have: (1) imposed tough penalties on contractors that engage in a pattern or practice of hiring subcontractors who willfully violate prevailing wage laws; (2) required notification of all workers on a public works project in writing of the prevailing wage; and (3) prohibited the reduction of wages, supplements, and interest owed to workers by violators of prevailing wage laws via a settlement or negotiation with the Department of Labor.
4. Injunctive Relief Standard: The bill would have loosened the standard for obtaining injunctive relief in connection with the filing of an improper practice charge with the state Public Employment Relations Board. In vetoing the bill, the Governor stated that changing the standard from "irreparable injury" to "maintenance of, or return to, the status quo is necessary to provide meaningful relief," would only cause unnecessary delay to the process.

Legislation Considered But Not Passed

1. Fair Share Act: Unions and employee rights groups urged the legislature to pass this bill. Such legislation (one of several mandatory health insurance type acts proposed during the legislative session) would impose a mandatory $3 per hour assessment for health insurance costs on businesses with 100 or more employees. Due to the rising cost of health care and the burden on New York State due to the number of uninsured private sector employees in New York, this legislation likely will be considered again during the next legislative session.
2. Workers' Compensation Reform: The legislature considered various acts to reform New York's "broken" workers' compensation system. Concepts included in proposed legislation include creating a system of tiered benefit levels for unscheduled injuries, increasing maximum weekly benefits to $550 and establishing objective medical guidelines to evaluate injuries and illnesses. This subject also likely will be an area of focus during the next legislative session.
3. Paid Family Leave: This legislation, similar to that passed in California in the last few years, aims to balance workplace and family. This act, inter alia, would: (i) allow employees out of work on family and medical leave for reasons other than their own disability to receive monetary disability benefits; (ii) require employers to permit employees to use sick days for school visits and to care for household members; and (iii) would require employers to provide school visitation, bereavement and miscellaneous medical leave. Labor organizations are expected to strongly lobby for this legislation again during the next legislative session.
4. Increased Disability Benefits: This proposed legislation would increase the maximum statutory disability benefit for non-work illnesses or injuries to $380 per week on July 1, 2007 and to $440 per week on July 1, 2008.

In addition, as in past years, the legislature considered acts addressing various issues such as universal access to personnel files (currently, New York private sector employers are not required to provide employees with access to their personnel files absent a policy or practice), limitations on permitted use of social security numbers, enhanced protection from retaliation for employees who reasonably believe their employer is engaged in an illegal business activity and restrictions on mandatory overtime for RN's and LPN's. It is likely that some or all of these topics will be revisited by the legislature during its next session.

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