January 2013 Archives

January 25, 2013

PAY RATE NOTICE REQUIREMENTS FOR ALL NEW YORK EMPLOYERS

For all of our clients who maintain offices in New York:

By February 1, all New York employers are required by the New York State Wage Theft Prevention Act to provide a written notice regarding specific wage information to each employee. Fines for not following the below listed requirements can be up to $2500 per employee, not including costs and attorney's fees.

Specific information for each employee includes:

1. Rate of pay, including any applicable overtime rates;
2. The unit by which the employee is paid (ex. By the hour, shift, month, etc.);
3. Official name of the employer and any others used in the course of business;
4. Mailing address and physical address and phone number of the employer's main location; and
5. Allowances taken from any minimum wage rates of pay.

This information must be provided at the time of hire, every year between January 1 and February 1 and under certain other specific circumstances. The notice must be provided in English and in the employee's primary language. The employer is also required to keep an acknowledgement form from the employee that they received the notice and retain this acknowledgement for 6 years. Templates for the notice and acknowledgment may be found here: www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm

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January 22, 2013

WORKPLACE NOTICE REQUIREMENTS

As a reminder to our business clients, federal and state law requires that employers post notices informing employees of their rights in the workplace. Notices that are required are specific to the type of employer and the number of employees employed. Failure to post these notice can result in fines. Below are posters that most employers should have.

Federal Government Employment Posting Requirements

• Job Safety and Health Protection, OSHA information
• Fair Labor Standards Act Minimum Wage Poster

Pennsylvania Employment Posting Requirements

• Minimum Wage Law Poster and Fact Sheet
• Abstract of Equal Pay Law
• Unemployment Compensation Poster
• Workers' Compensation Insurance Posting

National Labor Relations Board
• Employee Rights Notice Poster

Copies of these and other posters are available through the links provided. The posters must be physically posted in areas where employees will be able to see the posters. The information also is sometimes required to be posted on the employer's website.

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January 15, 2013

PENNSYLVANIA CREATES NEW CORPORATION KNOWN AS A "BENEFIT CORPORATION"

On January 23, 2013, Pennsylvania will become one of twelve states to have created a new type of corporation known as the "benefit corporation." Titled the "Pennsylvania Benefit Corporation Act", the act allows "social" entrepreneurs to focus not only on the bottom line but to also consider other non economic societal factors (community, environment, employees etc...). While the Benefit Corporation is based upon the familiar corporate form, it has three additional requirements - purpose, accountability and transparency.

Purpose. In short, the Benefit Corporation must have a purpose designed to create a positive impact on society and the environment which will be judged against a third-party standard. Examples could include companies focused on protecting the environment, educating inner city children or promoting awareness on health issues. The Act itself sets forth a non-exclusive list of appropriate purposes.

Accountability. Fiduciary duties of officers and directors have been broadened to require consideration of not only the traditional bottom line analysis, but how a decision impacts non-financial interests such as the environment or the company's employees. For example, if a company is going to be acquired in a merger, the officers and directors are no longer required to solely maximize shareholder value. A Benefit Corporation's Board of Directors are able to accept a lower price per share if going this route will result in no employees being terminated.

Transparency. Benefit Corporations are required to deliver to their shareholders an annual "benefit report" describing how the company met its stated public benefit goals as set forth in its articles of incorporation and if not, what transpired that prevented this from happening. The benefit report must filed with the Department of State and be posted on the company website. If there is no website, then the company must provide a copy to any person who requests a copy.

So, why would you want to form a Benefit Corporation or possibly switch your current entity to a Benefit Corporation? First and foremost, you may be socially conscious and believe a corporation has a responsibility to focus on more than just the bottom line. Second, there are tax advantages and incentive programs aimed at Benefit Corporations that are not available to other companies. Finally, marketing surveys have seen a push amongst consumers to direct their purchasing dollars towards businesses which are aligned with their priorities. Especially in this age of social media, where the effects of corporate behavior have fast implications, this can be a great way to distinguish your business from the competition.

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January 4, 2013

AT WILL EMPLOYMENT DISCLAIMERS - WORD CHOICE MATTERS

The General Counsel's Office for the National Labor Relation's Board has recently provided guidance regarding at-will employment disclaimers in employee handbooks. In the past, challenges of unfair labor practices (violation of Section 7 rights) have been successful before administrative law judges where the challenged language was read to imply that the at-will employment relationship could never be changed. Language that has recently found to be acceptable was where the employment was considered to be at-will, but that it could be changed only by the president of the company and that it must be in writing.

So what does this mean to employers? Word choice matters. Drafting an employee handbook alone or going to an office supply store and purchasing a form may seem like a good way to save money up front but can quickly cost more money in the long run. It is much better to have an attorney meet with you and actually observe and understand how your company operates and then draft a handbook that is tailored to your business and your state laws. In fact, insurance companies frequently will offer you a discount if you have an employee handbook that clearly states, for example, that sexual harassment and discrimination will not be tolerated and provides an employee a way to report such misconduct. Other issues a well thought out handbook should address include privacy and internet policies, as well as what benefits are and are not provided by the company. This is not meant to be an exhaustive list but is designed to get you thinking about what issues you should want to be clearly written down so that your employees know exactly what is expected of them in the workplace.

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