Two New Measures in New York: Wage Deduction Rules and Pregnancy Accommodation

by Cozen O'Connor
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Most employers tend to focus on federal law as a source of labor and employment obligations. However, employers should also pay careful attention to state and local laws on workplace issues. The first half of this month has already seen two significant developments in New York.

October 2, 2013 – Pregnancy Accommodation

Is New York City becoming more employee friendly? On October 2, Mayor Michael Bloomberg signed a law that places additional obligations on employers in New York City as it pertains to reasonable accommodation for pregnancy and related circumstances.

The purpose of this new law appears to be to fill a perceived gap in current pregnancy-related laws that do not provide reasonable accommodation requirements like those that exist in the area of disability. Under the new law:

  • Covered employers (those with four or more employees) may not refuse to provide a reasonable accommodation “to the needs of an employee for her pregnancy, childbirth or related medical condition that will allow the employee to perform the essential requisites of the job, provided that such employee’s pregnancy, childbirth or related medical condition is known or should have been known by the employer.”
  • Covered employers must provide written notice (in a prescribed form to be issued by the commissioner) to new employees at the time of commencement, and to all existing employees within 120 days of October 9, of the employee’s rights under the new law.
  • The term “reasonable accommodation” is defined the same as the term is used in the context of a reasonable accommodation for a covered disability, and the new law maintains the list of factors to be considered when determining whether an employer can prove the “undue hardship” exception to the reasonable accommodation requirement.

It is critical that New York City employers establish and review their current policies, practices and forms to reflect these new requirements and also provide appropriate training and communication to those personnel who will be involved in employment decisions in this area.

October 9, 2013 – Wage Deduction Regulations

As we previously reported, New York Governor Andrew Cuomo signed an amendment to New York Labor Law 193 that, effective November 6, 2012, provided greater flexibility to employers in New York when it comes to making permissible deductions from employee wages, by expanding the list of reasons an employer can take deductions from wages other than the usual withholding taxes and insurance premiums.

The old version of Section 193 provided that no wage deductions could be made unless they were either provided for by law or by government agency rule, or they were (i) expressly authorized in writing by the employee and (ii) for the benefit of the employee. Section 193, though, made clear that the only authorized deductions that would be deemed “for the benefit of the employee” were in all cases “limited to payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization, and similar payments for the benefit of the employee.”

The new law expanded the list of permissible deductions, although for two of the newly added deductions – the recovery of overpayments due to clerical or mathematical errors, and the repayment of employee advances or loans – employers could only move forward with the deductions after the New York State Department of Labor (DOL) promulgated regulations on the substantive aspects of how the deductions must be administered.

On October 9, almost one year after the Section 193 amendment became effective, the DOL finally published its regulations. Within the new DOL regulations are: (i) rules concerning the contents of employee authorizations and the process for obtaining such authorization; (ii) examples of what deductions still may or may not be for the benefit of the employee; and (iii) rules and procedures concerning the timing and duration of deductions for inadvertent wage overpayments and loan and advance repayments, and certain limitations and notice requirements for such deductions.

Employers in New York are now better able to use payroll deductions as a means for obtaining certain privileges that truly benefit the employee, and to correct certain payment-related errors. Nevertheless, it remains critical that employers understand and comply with the technical procedural and substantive requirements established as a condition to utilizing certain deductions, and develop policies and forms to comply with those requirements.

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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