A Reminder About New York's Notice Requirements for Discharged Employees

Posted on September 30, 2010 by Erin Sylvester Torcello

Most employers that engage in a reduction in force are aware of their obligations under the federal WARN Act, the New York WARN Act, the federal Consolidated Omnibus Budget Reconciliation Act (COBRA) and New York’s mini-COBRA statute, and we have posted several times on these topics. Employers should not, however, ignore some of the less popularized obligations to terminated employees created by state law.

For example, Section 195 of the New York Labor Law requires an employer to give an employee written notice of the “exact date” of his or her termination, as well as written notice of the “exact date” of the cancellation of the employee’s benefits. Notice must be provided within five “working” days of the date of the termination.
 

The Section 195 notice should also include information about employee conversion rights under the employer’s group life insurance plan. In New York, every group life insurance contract must include a conversion right for employees in the event that group coverage is terminated. As a result, when group life insurance coverage will end because an employee is terminated, the employer should provide written notice to that employee that he or she may have the option of converting the group coverage to individual coverage. An employer should advise the employee to contact the insurance provider for more information regarding any conversion rights under the policy.

New York employers must also provide written notice of an employee’s right to file a claim for unemployment insurance benefits. The notice must include the employer’s name, address, and registration number. In addition, employers must advise an employee to present the notice to the New York State Unemployment Insurance Division when he or she files a claim for benefits.
 
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New York DOL Issues New Guidelines and Forms Addressing Employer Obligations Under Section 195(1)

Posted on January 6, 2010 by Andrew Bobrek

The New York State Department of Labor (“NYSDOL”) recently posted guidelines and instructions on its website addressing employer obligations under New York Labor Law § 195(1). This recently amended statute requires employers to notify newly-hired employees in writing of their pay rates, pay dates, and, if applicable, overtime rates. The statute also requires employers to obtain written acknowledgments from new employees confirming receipt of this information.

NYSDOL also posted several new “model” forms for employers to use when complying with Section 195(1). The new forms supplement the problematic, one-size-fits-all form published by the agency last year. These new forms are intended to cover several different employee groups, including non-exempt employees who are paid either: (a) an hourly rate; (b) multiple hourly rates; (c) a weekly rate or salary for a fixed number of hours (40 or fewer in a week); (d) a salary for varying hours, day rate, piece rate, flat rate, or other non-hourly pay; or (e) a prevailing rate on a public work project. There is also a new model form for exempt employees.  

Consistent with its earlier reversal of position, NYSDOL’s guidelines and instructions state that use of the new model forms is not mandatory at this time. Rather, according to the guidelines, employers may create their own forms, or use or adapt the model agency forms, as long as: (a) the required information is given at the time of hiring, before any work is performed; (b) the employee is given a copy; and (c) the employee signs an acknowledgment of receipt, which the employer must retain for six years.

Several additional aspects of the new materials are also noteworthy. First, NYSDOL takes the position that notices to exempt employees —which apparently include employer-created notices—“must state the specific exemption that applies.” This requirement does not appear in Section 195(1). Second, the new model forms do not require the preparer to certify that the contents are true and accurate under penalty of perjury, which represents a change from the original one-size-fits-all form previously published by the agency. Third, the NYSDOL guidelines discuss how employers can craft written notices for commissioned salespersons, which will satisfy both Section 195(1) and Section 191(1)(c) of the New York Labor Law. Section 191(1)(c) requires that the terms of employment for commissioned salespersons (how wages, salaries, drawing accounts, and commissions are calculated) be reduced to a writing.

 
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New York State Department of Labor Changes Position on Mandatory Use of Its Wage Rate Form

Posted on December 2, 2009 by Joseph Dole

Without acknowledging that it is doing so, today the New York State Department of Labor ("DOL") changed its position on whether employers are required to use DOL’s form in order to comply with Section 195 of the Labor Law. Effective October 26, 2009, Section 195 requires employers to provide all new hires with notice of their wage rates, pay dates, and, if applicable, overtime rates. The statute also requires that employers obtain written acknowledgments from new employees confirming receipt of this information, which must conform to any "content and form" requirements established by DOL. Shortly after the effective date of the statute, DOL issued a problematic, highly controversial, one-size-fits-all form for providing that information, and mandated its use by employers for all classes of employees. Today, DOL reversed position by posting a notice on its website that states no particular form is required to comply with the statute and that DOL’s form is only a sample.   Employers may create their own forms, use the DOL sample, or adapt the DOL sample form.  The notice also states that DOL plans to come up with several different types of sample forms in the future, including a form for exempt employees.

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