With the new year came several new laws and amendments affecting New York and U.S. employers, and with new blood in the Oval Office and Congress more could be on the way soon.

We asked reporters at Business First and the Buffalo Law Journal to check in on several of these new or updated regulations - and what they're likely to mean for area employers.

 

Fair Pay Act

When Alabama grandmother Lilly Ledbetter got angry at being paid less than male counterparts for years, she set the stage for a momentous change in U.S. law.

The new Fair Pay Act, named for Ledbetter and signed into law in January, could start a trend, two Buffalo legal lawyers say.

"I think this is symptomatic of other things in the (Congressional) hopper, and only one piece of the overall puzzle that may well be challenging to employers this year," says James Donathen.

A partner with Phillips Lytle LLP specializing in employer-side employment issues, Donathen said a key element of the law is the statute-of-limitations extension it gives employees in wage-discrimination cases.

Under the new law, an employee can file a claim in a pay issue that allegedly occurred as long ago as two years instead of 180 days, the limit under the old law, he said.

Another lawyer, Ginger Schröder of the Buffalo firm Schröder Joseph & Associates LLP, said the new law could be an eye-opener for employers.

"It's going to be quite a shock for those who have been operating under an employee compensation system for a significant period of time, and which has not been challenged, to find themselves now subject to liability after so many years," said Schröder, who also represents employers.

Many U.S. business groups fear that the legislation will open the door for lawsuits over personnel decisions made years earlier, often by managers who no longer are with the company or may even be dead.

"Employers caught off guard may not be adequately prepared after-the-fact to deal with compensation issues," Schröder said.

-Thomas Hartley

WARN Act

More businesses in New York state must now follow compliance laws on job-loss notifications.

The New York State Worker Adjustment and Retraining Notification Act, which became law Feb. 1, requires that businesses with 50 or more full-time employees give 90 days advance written notice to employees, unions and the state Labor Department if mass layoffs, plant shutdowns or business relocations are planned.

Previously, employers had to follow federal WARN Act guidelines, which applied to companies with more than 100 full-time employees and required 60 days advance written notice.

The state regulations are meant to give workers more time to prepare for a job loss, state Labor Department spokesperson Jean Genovese said.

"The more notice employees have in advance, the sooner they can get started on (finding) employment," she said.

Under the state WARN Act, notification is necessary if an employer plans:

• A mass layoff of 250 or more full-time workers, or 25 full-time workers who represent 33 percent of the total workforce, within a 30-day period.

• A temporary or permanent shutdown of a facility that causes job cuts for 25 or more full-time workers within any 30-day period.

• A business relocation at least 50 miles away that causes 25 or more full-time workers to lose their jobs.

The state Labor Department can commence administrative proceedings against any company that does not follow the 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 litigation, he said.

"The state obviously decided that the net established by the federal WARN Act was too large, and wanted to create a more narrow, broader coverage so that more employers could be captured by the law," Oppenheimer said. "As a result, more workers will be entitled to protection."

- Allissa Kline

FMLA

The Family Medical Leave Act, signed into law in 1993 by President Bill Clinton, has been amended to broaden coverage and clarify several points of eligibility.

The changes took effect on Jan. 16, and sources we spoke to don't see them having a major impact on local companies.

Lawyer Richard Braden, a partner at Goldberg Segalla LLP specializing in labor and employment work, calls the updates a mixed bag for employers.

"There are a number of regs that are employer-friendly," he said, pointing to the chance for employers to confer directly with an employee's doctor to authenticate a claim as well as to clarify and outline which job functions the employee is eligible to perform.

"Really, what this is about is ferreting out the abuse and fraud in the system," Braden said. He believes the option for intermittent leave, still on the books, remains an opening for potential fraud.

Another key revision calls for expanded coverage for family members caring for an injured or ill service member, making them eligible for 26 weeks of leave in a 12-month period.

"Our HR departments have already notified our employees of their rights under FMLA," said Ann McCarthy, manager of consumer affairs for Wegmans, "and we have already updated our training for managers and our internal HR staff so they can identify when an employee may qualify for relief."

For a complete outline of the updated FMLA, see dol.gov/esa/whd/fmla.

- Matt Chandler

Correction law

Effective Feb. 1, employers must post a copy of the New York State Correction Law relating to the use of prior convictions when screening for potential employees.

Gov. David Paterson signed the legislation Aug. 5. It requires employers to post a copy of part of the law relating to employment of workers with criminal convictions.

"If there are 10 or more employees, article 23-A of the correction law must be posted on a bulletin board or in an accessible location at the workplace," said Randy Oppenheimer, special counsel at Damon & Morey LLP.

"When a background report is received and indicates a prior criminal conviction, the employer has to disclose this to the person. Secondly, before conducting an investigative consumer report on the individual, you need to notify the applicant, as a detailed report would show a conviction."

When conducting an investigative consumer report, the company must give a copy of Article 23-A to the applicant or current employee before obtaining it.

"Basically, you're saying, ‘Look, I'm going to learn about your criminal history," Oppenheimer said.

There are other categories of regulatory law that employers should pay attention to, either for posting in a common area or distributing in an employee manual.

Among these, Oppenheimer said, are statutes regarding human rights, disabilities, worker safety, employment discrimination, the minimum wage, military leave and USERRA, the Uniformed Services Employment and Re-employment Rights Act.

- David Bertola

Late-notice law

Consumers and corporate groups who don't immediately file an insurance claim following an incident have new protections under a recently amended state law.

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 prejudiced.

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 years.

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. "For the average person, an innocent mistake will not necessarily harm them in regard to having coverage going forward."

Leo Kuziemkowski, director of operations and claim manager at Lawley Insurance, says customers could benefit because it will become more difficult for the insurance company to deny a claim.

"It will help our clients," he says. "Under the old law, it was easier for an insurance company to deny a claim."

- Tracey Drury