News

Minimum Wage in NYS is currently $7.25

The NYS Marriage Equality Act

On June 24, 2011, Governor Andrew Cuomo signed the Marriage Equality Act providing legal rights to same-sex couples that have been limited to opposite-sex couples. The Legislation, which legalizes same-sex marriage in New York State, went into effect on July 24, 2011.

The Act amends New York's Domestic Relations Law and states that:

A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same of different sex.

No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage shall differ based on the parties to the marriage being the same sex or a different sex.

No application for a marriage license shall be denied on the ground that the parties are of the same or a different sex.

"Religious Organizations", who are exempt from the Act, are not required to solemnize same-sex marriages or to treat same-sex partners as spouses. These are religious entities, benevolent organizations and not-for-profit corporations that are operated, supervised or controlled by religious entities.

Benefits that are governed by federal laws (i.e. ERISA and DOMA) will not be affected by the Marriage Equality Act. For example, a same-sex spouse will not be recognized or covered under COBRA, HIPAA, or the Family Medical Leave of Act. Additionally, self-insured health plans are not legally required to offer benefits to same-sex spouses. However, an employer with a self-insured health plan can voluntarily opt to offer comparable benefits to same-sex spouses.

As of July 24, 2011, fully insured welfare plans issued in New York must offer same benefit coverage to same-sex spouses that are offered to opposite-sex spouses. This includes medical, dental, group long-term disability, group short-term disability, and group term life insurance plans.

At this time, same-sex spouse contributions will remain taxable under both Federal and New York State tax codes. Under current New York State Tax Law, a taxpayer's marital status for New York State taxes is the same as the taxpayer's marital status for federal taxes.

It is expected that the New York State Department of Taxation and Finance will issue guidance on how same-sex spouses should be treated under New York State Tax Law. Until guidance is issued, employers should wait to change their taxation practices on same-sex spouse contributions.

Given the mandates of the Marriage Equality Act, New York State employers need to carefully review their benefit plans, as well as policies and employee handbooks, to ensure they are in compliance with the law as of July 24, 2011.

Actions for Employers

1. For fully insured plans in New York, review insurance plan documents, summary plan descriptions and insurance plan contracts to ensure that the definition of "spouse" includes same-sex spouses. Amend plans and contracts as necessary.

For self-insured welfare plans that are governed by ERISA, review and amend documents, insurance and third party contracts to ensure that they clearly define "spouse". The definition of "spouse" will be dependent on whether or not they opt to offer benefits to same-sex spouses.

2. Review and update benefit communication materials, policies and employee handbooks to include same-sex spouses where applicable.

3. Review domestic partner policies and determine if any updates are required due to the legislation.

4. Contact your employment attorney if you need assistance with reviewing your benefit plans in light of the new law.

Changes to NY New Hire Reporting Requirements

Employers in New York must report new hires and rehires to the state directory of new hires. New hire reports must contain:

Each new employee's name, address, and Social Security number; and

The employer's name, address, and federal employer identification number.

Effective July 15, 2011, the new hire report must also contain whether employer-provided health insurance benefits are available for employees' dependents and the date on which employees qualify for the benefits.

Filing Forms and Deadlines

Employers have had the option of reporting this information via the state's on-line reporting system (www.nynewhire.com) or by submitting a copy of the employee's W-4, IT-2104 (NYS Employees Withholding Allowance Certificate), or other equivalent form. The NYS Employee's Withholding IT-2104 form was revised in May. The W-4 form, however, has not been revised. Employers that choose to report new hire information using the W-4 form will need to use an additional form as yet to be provided by the state to report information on dependent health insurance benefits.

Employers must also report whether dependent health insurance benefits are available and the date employees qualify for these benefits on a quarterly basis using the NYS-45 (Quarterly Combined Withholding, Wage Reporting, and Unemployment Insurance Return). This form will be redesigned for the 3rd quarter of 2011 to include these questions.

Fines for Failing to File

Employers that fail to report hires are subject to fines of $20 for each failure. Employers or employees who conspire not to report new hires or to supply false or incomplete reports can be fined $450 for each offense.

Action Items for Employers

Update new hire practices to comply with the new regulations

For employers who outsource their new hire reporting to payroll companies or other third party vendors, confirm the vendor is complying with the new requirements.

Updated Wage Theft Prevention Act (WTPA) Notices

Effective April 9, 2011 Section 195.1 of the Labor Law, was changed and now requires all employers, other than governmental agencies, to give employees at the time of hire (before work is performed) and on or before February 1st of each year notice of wage and hour information.

Another facet of the WTPA that employers should be aware of is Section 195(4) which states that employers must maintain "contemporaneous, true and accurate payroll records for each employee, including former employees for not less than six years." By this broad statement it leads us to believe that employers should not only be tracking hours for non-exempt employees but exempt employees as well.

We often recommend employers track exempt employees hours for purposes of potential investigations from the DOL. If an investigation occurred and they reclassified an exempt worker to a non-exempt worker employers would have accurate time records to turn to for back pay.

We advise employers to make sure they are using the most current template of the WTPA notices to include this updated information.

Social Media in the Workplace

Social Media is widely used around the world today and has quickly infiltrated the workplace. There are many advantageous uses for Social Media in the workplace such as marketing or recruiting, but employers must be aware of the pitfalls of Social Media use at work and have clear policies for employees to follow.

There are also times when an employee's use of social media may be protected. In a recent case the NLRB has faulted Hispanics United of Buffalo for terminating five employees due to their Facebook posts. The employees were having a Facebook conversation concerning working conditions and the NLRB stated that the discussions were "protected concerted activity" under the National Labor Relations Act.

The law unfortunately has not caught up with the rapid growth of Social Media and we anticipate there will be several instances where it will differentiate.

To read the full article about Hispanics United of Buffalo go to this link:

http://online.wsj.com/article/SB10001424052748703509104576331861559033254.html?mod=googlenews_wsj