New York Legislative Update

September 14, 2007

During the 2007 legislative session, the New York legislature passed and Governor Eliot Spitzer signed into law various pieces of legislation relevant to New York employers. We previously summarized new legislation pertaining to employee time off rights for expressing breast milk and for making blood donations. (See New York Employers Required to Provide Time Off for Expressing Breast Milk and for Donating Blood.) Below are additional modifications to the New York Labor Law and amendments to the New York Human Rights Law that affect employers.

Necessity For Detailed Written Commission Agreements

Effective October 16, 2007, based on modifications to the definition of "Commission Salesman" in Section 191 of the Labor Law, the terms of employment (including, but not limited to, the terms under which commissions are earned during employment and upon termination of employment and the frequency of reconciliation of any recoverable draw) of a commissioned employee must be in a writing signed by both the employer and the employee, retained by the employer for at least 3 years and made available to the Commissioner of Labor, upon request. Due to this mandate, the statute now specifically states that, in the absence of a written agreement, there is a presumption that the terms of employment set forth by a commissioned employee are accurate.

Protection For Those Convicted of Violations Added to Human Rights Law

Effective November 1, 2007, the New York State Human Rights Law is amended to prohibit employers from taking any adverse action against an applicant or employee due to Youthful Offender Adjudication or for a conviction for a Violation sealed pursuant to the Criminal Procedure Law. Currently, the Human Rights Law only prohibits employers from disqualifying applicants or employees based on a non-pending arrest that did not result in conviction. Since, as a practical matter, almost all Violation convictions generally are sealed, New York employers' right to disqualify individuals based on Violations will generally be proscribed. New York employers retain the right to take action based on job-related misdemeanor and felony convictions and pending arrests.

Change in Labor Law Definition of "Clerical and Other Worker"

Effective January 14, 2008, the exclusion from the definition of "Clerical and Other Worker" set forth in Section 190 of the Labor Law changes from exempt executive, administrative and professional employees whose earnings are in excess of $600 per week to exempt executive, administrative and professional employees whose earnings are in excess of $900 per week. Based on this modification, after January 14, 2008:

1. Exempt executive, administrative and professional employees making less than $900 per week must be paid no less frequently than semi-monthly (currently, exempt executive, administrative and professional employees making more than $600 per week can be paid monthly, instead of semi-monthly).
2. Employers only can mandate direct deposit for exempt executive, administrative and professional employees making more than $900 per week (currently, direct deposit can be mandated for exempt executive, administrative and professional employees making more than $600 per week).
3. Exempt executive, administrative and professional employees making less than $900 per week have the right to collect wage supplements, including unpaid vacation and bonuses due under the employer's policy, under the Labor Law (currently, exempt executive, administrative and professional employees making more than $600 per week are not entitled to collect wage supplements under the Labor Law).

This is a general summary of legislative changes of interest to employers. As always, Jackson Lewis attorneys are available to answer your questions regarding any of these legislative developments or any other issues under New York law.

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