Keep pace with state, federal labor laws

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					Keep pace with state, federal labor laws
Friday, February 13, 2009

With the new year came several new laws and amendments          Many U.S. business groups fear that the legislation will
affecting New York and U.S. employers, and with new blood       open the door for lawsuits over personnel decisions made
in the Oval Office and Congress, more could be on the way       years earlier, often by managers who no longer are with the
soon.                                                           company or may even be dead.

We asked reporters from Business First and the Buffalo          “Employers caught off guard may not be adequately
Law Journal to check in on several of these new or updated      prepared after-the-fact to deal with compensation issues,”
regulations – and what they’re likely to mean for area          Schröder said.
                                                                — Thomas Hartley
Fair Pay Act
                                                                WARN Act
When Alabama grandmother Lilly Ledbetter got angry at
being paid less than male counterparts for years, she set the   Editor’s note: This section is a condensed version of a full-
stage for a momentous change in U.S. law.                       length story on the WARN Act that appeared in the Jan. 30
                                                                edition of Business First.
The new Fair Pay Act, named for Ledbetter and signed into
law in January, could start a trend, two Buffalo legal          More businesses in New York state must now follow
lawyers say.                                                    compliance laws on job-loss notifications.

“I think this is symptomatic of other things in the             The New York State Worker Adjustment and Retraining
(Congressional) hopper, and only one piece of the overall       Notification Act, which became law Feb. 1, requires that
puzzle that may well be challenging to employers this year,”    businesses with 50 or more full-time employees give 90
says James Donathen, a partner with Phillips Lytle LLP          days advance written notice to employees, unions and the
specializing in employer-side employment issues. He said a      state Labor Department if mass layoffs, plant shutdowns or
key element of the law is the statute-of-limitations            business relocations are planned.
extension it gives employees in wage-discrimination cases.
                                                                Previously, employers had to follow federal WARN Act
Under the new law, an employee can file a claim in a pay        guidelines, which applied to companies with more than 100
issue that allegedly occurred as long ago as two years          full-time employees and required 60 days advance written
instead of 180 days, the limit under the old law, he said.      notice.

Another lawyer, Ginger Schröder of the Buffalo firm             The state regulations are meant to give workers more time
Schröder Joseph & Associates LLP, said the new law              to prepare for a job loss, state Labor Department
could be an eye-opener for employers.                           spokesperson Jean Genovese said.

“It’s going to be quite a shock for those who have been         “The more notice employees have in advance, the sooner
operating under an employee compensation system for a           they can get started on (finding) employment,” she said.
significant period of time, and which has not been
                                                                Under the state WARN Act, notification is necessary if an
challenged, to find themselves now subject to liability after
                                                                employer plans:
so many years,” said Schröder, who also represents
• A mass layoff of 250 or more full-time workers, or 25 full-   Another key revision calls for expanded coverage for family
time workers who represent 33 percent of the total              members caring for an injured or ill service member,
workforce, within a 30-day period.                              making them eligible for 26 weeks of leave in a 12-month
• A temporary or permanent shutdown of a facility that
causes job cuts for 25 or more full-time workers within any     “Our HR departments have already notified our employees
30-day period.                                                  of their rights under FMLA,” said Ann McCarthy, manager
                                                                of consumer affairs for Wegmans, “and we have already
• A business relocation at least 50 miles away that causes 25   updated our training for managers and our internal HR
or more full-time workers to lose their jobs.                   staff so they can identify when an employee may qualify for
The state Labor Department can commence administrative
proceedings against any company that does not follow the        For an outline of the updated FMLA, see
new regulations, said Randy Oppenheimer, special counsel
at Damon & Morey LLP. The federal WARN Act has no
such provision, only that individuals themselves can pursue     — Matt Chandler
litigation, he said.
                                                                Correction law
“The state obviously decided that the net established by the    Effective Feb. 1, employers must post a copy of the New
federal WARN Act was too large, and wanted to create a          York State Correction Law relating to the use of prior
more narrow, broader coverage so that more employers            convictions when screening for potential employees.
could be captured by the law,” Oppenheimer said. “As a
result, more workers will be entitled to protection.”           Gov. David Paterson signed the legislation Aug. 5. It
                                                                requires employers to post a copy of part of the law relating
— Allissa Kline                                                 to employment of workers with criminal convictions.

Family Medical Leave Act
                                                                “If there are 10 or more employees, article 23-A of the
The Family Medical Leave Act, signed into law in 1993 by        correction law must be posted on a bulletin board or in an
President Bill Clinton, has been amended to broaden             accessible location at the workplace,” said Randy
coverage and clarify several points of eligibility.             Oppenheimer, special counsel at Damon & Morey LLP.

The changes took effect Jan. 16, and sources don’t see them     “When a background report is received and indicates a
having a major impact on local companies.                       prior criminal conviction, the employer has to disclose this
                                                                to the person. Secondly, before conducting an investigative
Lawyer Richard Braden, a partner at Goldberg Segalla            consumer report on the individual, you need to notify the
LLP specializing in labor and employment work, calls the        applicant, as a detailed report would show a conviction.”
updates a mixed bag for employers.
                                                                When conducting an investigative consumer report, the
“There are a number of regs that are employer-friendly,” he     company must give a copy of Article 23-A to the applicant
said, pointing to the chance for employers to confer directly   or current employee before obtaining it.
with an employee’s doctor to authenticate a claim as well as
to clarify and outline which job functions the employee is      “Basically, you’re saying, ‘Look, I’m going to learn about
eligible to perform.                                            your criminal history,” Oppenheimer said.

“Really, what this is about is ferreting out the abuse and      There are other categories of regulatory law that employers
fraud in the system,” Braden said. He believes the option       should pay attention to, either for posting in a common
for intermittent leave, still on the books, remains an          area or distributing in an employee manual.
opening for potential fraud.
Among these, Oppenheimer said, are statutes regarding            “For the average person, an innocent mistake will not
human rights, disabilities, worker safety, employment            necessarily harm them in regard to having coverage going
discrimination, the minimum wage, military leave and             forward,” he said.
USERRA, the Uniformed Services Employment and
Re-employment Rights Act.                                        Leo Kuziemkowski, director of operations and claim
                                                                 manager at Lawley Insurance, says customers could
— David Bertola                                                  benefit because it will become more difficult for the
                                                                 insurance company to deny a claim.
Late-notice law

Consumers and corporate groups that don’t immediately            “It will help our clients,” he says. “Under the old law, it was
file an insurance claim following an incident have new           easier for an insurance company to deny a claim.”
protections under a recently amended state law.
                                                                 — Tracey Drury
The change to the “late notice” law prevents insurers from
denying a claim based simply on the date a claim is filed.
Now they must show that they’ve been harmed by the wait,
or that their ability to investigate has actually been

The law affects those covered by liability-insurance policies
issued or renewed after Jan. 18, affecting homeowner, auto
and general liability policies for both personal and
commercial coverage. Dan Kohane, a senior partner at
Hurwitz & Fine PC, worked with industry trade groups to
shape the terms of the statutory change.

“For New York, this is a rather dramatic change in the rules
of engagement,” he says.

The change brings New York in line with nearly every other
state in shifting the onus to insurance companies if a claim
is filed within two years of the policy’s required time frame.

David Gelia, executive vice president at United
Insurance Agency and secretary/treasurer of the
Independent Insurance Agents and Brokers of New York,
says agents and brokers have been calling for the change for

The real benefit may come for those who suffer injuries or
damages that become apparent after the fact, such as when
someone’s neck or back begins to hurt some time after a car
accident – pain they may have dismissed as minor and not
immediately reported.

“Before, whether or not they had done some investigation,
(the insurer) could just say, ‘Sorry, I’m going to deny the
clam for late notice,’ ” Gelia said.