New York Labor and Employment Law Report

Effective October 26, 2009, employers in New York will have to provide employees hired after that date with a written notice of their rate of pay, their overtime rate (for non-exempt employees) and their regular pay date, pursuant to an amendment to Section 195 of the New York Labor Law.  The new law, signed by Governor Patterson on July 28, 2009, also requires employers to obtain a written acknowledgement from each newly-hired employee that he or she has received the required information.  The acknowledgement must conform to standards set by the Commissioner of Labor.  At this point, the Commissioner has not yet set those standards.

Prior to the amendment, employers only had to provide notice of the regular wage rate and pay date, but not in writing, and no written acknowledgement from the employee was required.  The purpose of the new law is to enable employees to determine their overtime rate and to ensure that employees understand their regular wage rates and pay dates. 

The New York State Department of Labor ("NYSDOL") recently issued regulations regarding Labor Law Section 167, which prohibits health care employers from requiring nurses to work more than their regularly scheduled work hours.  The regulations reiterate and explain the provisions of the law, but also impose a requirement (which is not contained in the law) that health care employers establish a written "Nurse Coverage Plan" within 90 days of the regulations' July 15, 2009 effective date.  The NYSDOL has also posted on its web site answers to some frequently asked questions regarding the law and regulations.

The law, which went into effect on July 1, 2009, provides that health care employers may not require registered professional nurses and licensed practical nurses who provide direct patient care to work more than their "regularly scheduled work hours," subject to the following exceptions:

• a health care disaster, such as a natural or other type of disaster that increases the need for health care personnel, unexpectedly affecting the county in which the nurse is employed or a contiguous county;
• a federal, state, or county declaration of emergency in effect in the county in which the nurse is employed or in a contiguous county;
• a health care employer's determination that there is a patient care emergency (an unforeseen event that could not be prudently planned for and does not regularly occur) that makes work beyond regularly scheduled hours necessary; or
• an ongoing medical or surgical procedure in which the nurse is actively engaged and whose continued presence through the completion of the procedure is needed to ensure the health and safety of the patient.

 

The phrase "regularly scheduled work hours" is defined in the law as the hours a nurse has agreed to work and is normally scheduled to work pursuant to the budgeted hours allocated to the nurse's position by the health care employer, or some other measure generally used by the health care employer to determine when an employee is minimally supposed to work, consistent with the provisions of any applicable collective bargaining agreement.  Therefore, if a part-time nurse is regularly scheduled to work 20 hours per week, that nurse cannot be required to work more than 20 hours per week unless one of the exceptions identified above applies.

Under the regulations, all health care employers are required to establish and implement a written Nurse Coverage Plan within 90 days of the regulations' July 15, 2009 effective date, which means that the Plan must be in place by October 13, 2009.  The Plan must take into account typical patterns of staff absenteeism due to illness, leave, and other factors, and must identify as many alternative staffing methods as are available to ensure adequate staffing through means other than the use of mandatory overtime.  These methods might include contracts with per diem nurses, arrangements for assignment of floating nurses, and requesting voluntary overtime from nurses.  The Plan must be made available to all nursing staff, either by posting the Plan in a location accessible to all nursing staff or by other means such as posting on the health care employer's intranet site, and must be provided to any collective bargaining representative of the nurses.  The Plan must also be provided to the Commissioner of Labor, upon request.

Health care employers that do not prepare a Nurse Coverage Plan may be precluded from relying on the "patient care emergency" exception to the law.  The regulations provide that a health care employer may not require a nurse to work beyond his or her regularly scheduled hours to address a patient care emergency, unless the employer first makes a good faith effort to secure coverage by utilizing the alternative staffing methods set forth in its Plan.  The health care employer is required to document its attempts to secure coverage under the terms of its Plan.  If a health care employer does not have a Nurse Coverage Plan in place, or fails to make efforts to utilize the alternative staffing methods set forth in its Plan, the employer cannot rely on the "patient care emergency" exception. 

The regulations also provide some guidance for health care employers regarding how the other exceptions will be interpreted and applied by the NYSDOL.  The regulations provide that a determination regarding whether a "health care disaster" exists shall be made by the health care employer and must be reasonable under the circumstances.  Some examples of health care disasters include unforeseen events involving multiple serious injuries (such as fires, auto accidents, or a building collapse), chemical spills, or a widespread outbreak of an illness requiring hospitalization of many individuals in the community.  The regulations also provide that a determination regarding whether a nurse's continued presence beyond regularly scheduled work hours is required for an ongoing medical or surgical procedure shall be made by the nursing supervisor or nurse manager supervising the nurse.

Effective July 24, 2009, the New York State minimum wage will increase from $7.15/hour to $7.25/hr. This increase will bring the state minimum wage in line with the federal minimum wage which will increase from $6.55/hour to $7.25/hour, also effective July 24, 2009. Employers should note this change, take the necessary steps to implement this increase and replace all prior state minimum wage postings with the recently-promulgated New York State Department of Labor Minimum Wage Notice.

 

It is that time of year when employers are approached with requests from college students for unpaid internships. The benefits of the symbiotic relationship are obvious. The internship provides the student with an opportunity for real life experience, resume enhancement and perhaps a step towards a paying position with the employer after graduation. The employer receives the chance to evaluate a new applicant, at no cost. What is not so obvious are the legal risks.

One area of risk is the Fair Labor Standards Act (“FLSA”) which requires non-exempt employees to be paid the minimum wage for all hours worked. Non-exempt employees must also receive 1.5 times their regular rate of pay for all hours in excess of 40 in a workweek.

The $64,000 question, however, is whether the unpaid intern is an “employee” within the meaning of this and other federal and state statutes. The Department of Labor (“DOL”) has adopted six criteria for evaluating this issue. They are as follows: 

1. he internship should be similar to the training given in a vocational school;
2. The training must be primarily for the benefit of the intern, not the employer;
3. The intern must not displace any regular employees, but must work under close supervision;
4. There should be no immediate advantage to the employer and, in fact, operations may be impeded by the training;
5. The intern must not be entitled to a job at the completion of the internship; and
6. The intern and the employer must understand that the intern shall receive no pay for the training. 

In one case, a company requested an opinion from the DOL as to whether unpaid interns who received college credit to work 7 to 10 hours per week as field marketers were employees. There was a coordinator who advised the students and communicated regularly on their progress. There was no obligation to hire them. The DOL found that four of the six criteria were established: (i) training similar to vocational school; (ii) no expectation of compensation; (iii) training primarily for the benefit of the intern; and (iv) no obligation of hiring.

On the two remaining questions, displacing regular employees and whether the company derived an immediate benefit, the DOL indicated the record was not clear. This opinion letter indicates employers should not assume the DOL will not carefully scrutinize these relationships. DOL has affirm its view in a subsequent formal opinion letter.

If a company is using unpaid interns, it should make sure:

1. It has an agreement or letter making it clear there is no pay and no guaranteed job;
2. Adopt a policy that sets up strict supervision and assigns a mentor;
3. Ensure the primary benefit of the internship is for the student, not the employer -- minimize assigning the same duties given to regular employees, do not use interns to displace any employees, and, if possible, require college credit; and
4. Arrange for a structured program of internal and, if possible, external instruction of the type of work done by the employer.

Remember, a determination that an unpaid intern is, in fact, an employee can have impact beyond minimum wage and overtime. The discrimination laws, worker’s compensation coverage, state and federal tax laws, employee benefits and unemployment insurance coverage all pose potential consequences in the event of a misguided classification.