New York Labor Management QA -

New York Labor Management QA

Email: nyc4ww@evershinecpa.com
or
The Engaging Manager Ian Lin, a well-English speaker
Tel: +1-510-996-2685

LRC – United States – New York Labor Regulations

LRC-CA-20.10
What must be included in the contents of a labor contract in the United States – New York?

Evershine RD:

Federal

There are no minimum requirements for an employment contract.
There is no standard form because they are purely private arrangements.

States – New York

In New York, employment is generally “at-will”, which means that an employee may be terminated with or without reason.
Employment “at-will” can be established with employment contracts, outlining the terms and conditions which include:

The term of employment
The employee’s title, duties, and responsibilities
Salaries and bonuses
Medical, dental benefits, retirement benefits
Termination and severance

LRC-CA-20.11
Do the United States – New York arrange labor contracts in fixed terms?
What should be the length of the labor contract in the United States – New York?

Evershine RD:

Federal

No legal provision governs fixed or unlimited term contracts.
Generally, where no definite period of employment is stated or proved, the employment is presumed to be at-will, meaning that either party may terminate the employment at will, without liability for breach of contract.
The majority of employees in the United State are employed on an “at-will” basis.
Yes. The USA do not limit the duration of a fixed-term employment contract.

States – New York

An employee may be hired for a term of definite duration.
Where the contract of employment is for a definite term, the employer or the employee may terminate the employment only for “cause”.
The length of the labor contract is at the discretion of the employer unless the parties have agreed by contract to fix the duration of the employment contract.
24 months is the maximum duration of the fixed-term employment contract.

LRC-CA-20.20
What is the minimum age for hiring new employees in the United States – New York?

Evershine RD:

Federal

Generally, the FLSA sets 14 years old as the minimum age for employment and limits the number of hours worked by minors under the age of 16.

States – New York

Minors under age 18 can’t work in certain types of employment, with exceptions for certain apprentices, student-learners, or trainees and those who have completed certain types of training.
Minors aged 14 to 17 can’t work during times when their school attendance is required.
They can work during times when such attendance isn’t required, subject to certain work-hour restrictions.
Minors under the age 14 generally can’t be employed, permitted, or allowed to work.

LRC-CA-20.40
Is it a requirement for employers in the United States – New York to conduct a pre-employment background check?

Evershine RD:

Federal

Background check is common in the United States.
When running the background checks, you must comply with the Fair Credit Reporting Act (FCRA).
The Federal Trade Commission (FTC) enforces the FCRA.
The FCRA requires employers to obtain permission from candidates to conduct a background check in writing.
To verify employment eligibility, employers and employees must complete the appropriate sections of Form I-9.
As part of the verification process, employers must receive documents from employees that establish their identity and employment eligibility as listed on Form I-9.

States – New York

New York doesn’t have an employment eligibility verification law that applies generally to private employers.

LRC-CA-20.50
Does the Non-Competition indemnity clause in labor contracts in the United States – New York have legal effect?

Evershine RD:

Federal

A covenant not to compete will be enforced only if it restricts the employee’s ability to compete no more than is reasonably necessary to protect the employer’s legitimate interests.
Although covenants not to compete are generally disfavored by the courts, they will be enforced in most states if the covenant not to compete is designed to “protect against … ‘unfair and illegal’ conduct” on the part of the former employee and not simply “to insulate the employer from competition.”

States – New York

New York doesn’t have a noncompetition agreements law that applies generally to private employers.

LRC-CA-40.05
What are the regulations on Gender Discrimination in employment specifically for female workers in the United States – New York?

Evershine RD:

Federal

An employment policy or practice that applies to everyone, regardless of sex, can be illegal if it has a negative impact on the employment of people of certain sex and is not job-related or necessary to the operation of the business.
Sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 includes discrimination “on the basis of pregnancy, childbirth, or related medical conditions,” under the 1978 Pregnancy Discrimination Act (PDA).

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

States – New York

Employers may not discriminate based on gender identity, which includes a person’s appearance, behavior, or expression, regardless of the person’s assigned sex at birth.

LRC-CA-50.10
Can the employer in the United States – New York collect, or process data transmitted by employees over the internet?

Evershine RD:

Federal

The Stored Communications Act (“SCA”) generally prohibits accessing the online account of another without that individual’s consent.
You are permitted to monitor your employees’ email and internet use; however, before you conduct electronic monitoring, you should be sure to comply with applicable federal and state laws.
To reduce the risk that you will be sued by your employees because you monitor their email and internet use, you should have an electronic communications policy in place at all your worksites.
The policy should clearly specify employees’ obligations when using your electronic communications systems, including desktop or laptop computers, personal digital assistants, pagers, and cell phones.
Requiring your employees to sign acknowledgments that they have read, understood, and agree to comply with the policy is another step you can take to reduce the risk of litigation.
You also should conduct training sessions for your employees to review the electronic communications policy and discuss hypothetical situations that could arise for employees at your company.

States – New York

According to 2021 N.Y. Laws 583 (A.B. 430); N.Y. Civ. Rights Law § 52-C.
Employers can’t unlawfully use any instrument, device, or equipment to:

intentionally acquire, receive, collect, overhear, or record electronic communications, unless they have the consent of either party.

Effective May 7, 2022, any employer who monitors or otherwise intercepts telephone conversations, email, or internet access or usage of or by an employee by any electronic device or system, is required to give prior written notice upon hiring to all employees who are subject to electronic monitoring.
The notice must be in writing, in an electronic record, or in another electronic form and acknowledged by the employee either in writing or electronically.
Employers also must post the notice of electronic monitoring in a conspicuous place that is readily available for viewing by its employees who are subject to electronic monitoring.

LRC-CA-60.10
What are the regulations on working hours in the United States – New York?

Evershine RD:

Federal

There is no general maximum number of hours workers can be allowed to work under federal law.
Workers in several types of industries, such as long-haul freight truck drivers, have daily hour restrictions set for safety purposes.
In many organizations, employees are required to work 40 hours per week, with workdays beginning at 9 a.m. and ending at 5 p.m.

States – New York

There are no limits on the number of work hours per day.
In general, if work for more than 40 hours in a pay week, overtime pay is to be made.

LRC-CA-60.30
What are the regulations on overtime hours in the United States – New York?
What is the overtime premium rate in the United States – New York?

Evershine RD:

Federal

The federal Fair Labor Standards Act establishes overtime requirements that apply to covered employers.
Generally, employers that are subject to the FLSA must ensure that nonexempt employees receive additional overtime wages for any hours that nonexempt employees work more than 40 hours per workweek.
Overtime rate equals regular rate plus one-half regular rate (1.5 times).
Under the FLSA, employers must pay nonexempt employees one and one-half times their regular rate of pay for all time worked more than 40 hours during any workweek, referred to as overtime pay.

States – New York

Employees covered by New York’s overtime law must be paid 1.5 times their regular rate of pay for hours worked more than 40 per week.
Different rates apply for the executive and administrative exemptions based on employer size and location.

LRC-CA-60.50
Is it common to pay the 13^th month’s salary in the United States – New York?

Evershine RD:

Federal

The 13^th month’s salary is not mandatory in the United States.

States – New York

The 13^th month’s salary is not mandatory.

LRC-CA-70.10
What are the regulations on general leave policy for employees in the United States – New York?

Evershine RD:

Federal

There is no federal requirement to provide paid leave to workers.
In practice, 1 week per year during the first few years to 3 weeks or more for long-serving employees.

States – New York

The Earned Paid Leave requires employers to provide paid leave through a method where employees earn and use the leave for permitted reasons.
Employers must allow employees to accrue one hour of sick leave for every 30 hours worked, subject to certain limits.

LRC-CA-70.20
What are the public holidays in the United States – New York?
What is the overtime premium rate during public holidays in the United States – New York?

Evershine RD:

Federal

The U.S. has 11 national holidays.

Jan. 1: New Year’s Day
Martin Luther King’s Birthday (the third Monday in January)
George Washington’s Birthday (the third Monday in February)
Memorial Day (the last Monday in May)
June 19: Juneteenth
July 4: Independence Day
Labor Day (the first Monday in September)
Columbus Day (the second Monday in October)
Nov. 11: Veterans Day
Thanksgiving Day (the third Thursday in November)
Dec. 25: Christmas Day

No overtime pay is required if work on holidays and weekends falls within the regular work schedule and total hours do not exceed 40 in a workweek.
Overtime rate equals regular rate plus one-half regular rate (1.5 times).

States – New York

Feb 12: Lincoln’s Birthday
Nov 2: Election Day

The Labor Law does not require overtime pay for a holiday, weekend, or night work.
However, if an individual employment agreement or collective agreement calls for increased or additional pay for a holiday, weekend, or night work, such an agreement is enforceable under the Labor Law.

LRC-CA-70.30
What is the maternity leave policy for female employees in the United States – New York?

Evershine RD:

Federal

The Family and Medical Leave Act (FMLA) applies to companies with 50 or more employees.
These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

For the birth and care of the newborn child of an employee
For placement with the employee of a child for adoption or foster care
To care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition or
To take medical leave when the employee is unable to work because of a serious health condition.

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months.

States – New York

New York’s family-leave insurance program, is known as the Paid Family Leave program.
Employees are eligible to receive family-leave insurance benefits if they:

work for a covered employer for at least 20 hours a week for at least 26 consecutive weeks; or
work during the usual, available work period for at least 26 consecutive weeks in any trade or business where they are regularly employed and where day-to-day hiring of employees is the usual practice.

Eligible employees can receive family-leave benefits if they take leave:

to provide care, including physical or psychological care, for their family members’ serious health conditions.
to bond with their newborn, newly adopted, or newly placed foster child during the first 12 months after birth, adoption, or placement; or
for qualifying emergencies that occur because their spouse, domestic partner, child, or parent is on active duty or is notified of an impending call or order to active duty in the U.S. armed forces.

LRC-CA-70.40
What is the paternity leave policy for male employees in the United States – New York?

Evershine RD:

Federal

FMLA applies to companies with 50 or more employees.
These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for a newborn, newly adopted child, or an ill family member.
Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months.

States – New York

Refer to LRC-CA-70.30 for the family-leave insurance program.

LRC-CA-70.50
What are the provisions on sick leave, bereavement leave and personal leave for employees in the United States – New York?

Evershine RD:

Federal

Sick Leave

Federal law does not require sick leave.
FMLA applies to companies with 50 or more employees.
A federally mandated unpaid leave program, the Family Medical Leave Act (FMLA), requires employers to allow workers to take up to 12 weeks off generally to deal with certain personal qualified medical issues or qualified medical conditions of defined family members.

Bereavement Leave

Federal law does not require funeral leave.
These benefits are generally a matter of agreement between an employer and an employee.
Most employers grant 3 to 5 days of bereavement leave per occurrence.
Some employers grant longer periods of leave for immediate family members—such as parents, spouses, children, or siblings—and shorter periods of leave for more distant relatives.

Personal Leave

Federal law does not require personal leave.
These benefits are generally a matter of agreement between an employer and an employee.

States – New York

Sick Leave

Employers are covered by the sick leave law.
New York’s paid sick leave law requires employers with 5 or more employees or net income of more than $1 million to provide paid sick leave to employees and for employers with fewer than 5 employees and a net income of $1 million or less to provide unpaid sick leave to employees.

Employers must allow employees to accrue 1 hour of sick leave for every 30 hours worked, subject to certain limits.
Employees can use this leave for their own or their family member’s mental or physical illness, injury, or health condition or its diagnosis, care, or treatment.

Bereavement Leave

Private employers are covered by the bereavement leave provisions.
If employers provide funeral or bereavement leave for the death of an employee’s spouse or the spouse’s child, parent, or other relative, they can’t deny this leave for the death of an employee’s same sex committed partner or the partner’s the child, parent, or other relative.

LRC-CA-70.60
What are the regulations on pension benefits and social security insurance benefits for employees in the United States – New York?

Evershine RD:

Federal

United States law provides for retirement benefits and subsidized health insurance under federal Social Security and Medicare programs.
These federal programs provide benefits for retirees, the disabled, and children of deceased workers.
Social Security benefits include old-age, survivors, and disability insurance. Medicare provides hospital insurance benefits.

States – New York

Most New York employers are required to provide disability insurance for employees.
Coverage may be provided through the state insurance fund, private insurance, or self-insurance.
Both employees and employers must contribute to the plan.
New York also has a family-leave insurance program.
Employers that are covered under New York’s workers’ compensation provisions are subject to the state’s paid family-leave insurance provisions.
New York’s Unemployment Insurance Law requires most New York employers to contribute to the state unemployment insurance fund.
Employers have assessed unemployment insurance taxes based on claim histories.
The taxes are assessed against employers only; there is no employee liability.

LRC-CA-70.70
What are the regulations on Workers’ Compensation for employees in the United States – New York?

Evershine RD:

Federal

All employees are covered by employer’s workers’ compensation policy.
Employer pays the full cost to provide workers’ compensation coverage.

States – New York

New York requires all covered employers to obtain and maintain insurance for on-the-job injuries and occupational diseases that result in total or partial incapacity or death.
Employers can obtain workers’ compensation coverage through private insurers, self-insurance programs, or the state fund.
All full- and part-time employees are covered, as are all minors, whether they are employed illegally or not.

LRC-CA-80.05
Can an employee in the United States – New York join a labor union?

Evershine RD:

Federal

Under the National Labor Relations Act, employees have the right to self-organize; form, join, or assist unions.

States – New York

Employees have the right to join unions.

LRC-CA-80.06
How to handle labor disputes in the United States – New York?

Evershine RD:

Federal

The most widely used forms of alternative dispute resolution are negotiation, mediation, and arbitration.
Typically, if you can’t resolve a dispute through direct talks with the other side, you can turn to mediation, in which a neutral third party helps you reach a settlement that’s mutually agreeable to both you and the other party to the dispute.
If mediation fails and the contesting parties can’t decide on their own, you can seek arbitration, in which an arbitrator hears both sides of the dispute and decides for the parties, keeping in mind fairness, contractual obligations, and the law.

States – New York

The New York State Department of Labor administers the DOL-related dispute resolution provisions.
New York Law establishes dispute resolution procedures for employers and employees.
Begin arbitration proceedings by giving written notice to the other parties as required.
Written arbitration agreements are valid, enforceable, and irrevocable, except as permitted for the revocation of contracts.
Courts can decide whether arbitration agreements exist and whether disputes are subject to these agreements.
If arbitrators order hearings, they notify the parties at least eight days before hearings begin.
Hearings can’t be postponed past the date set by arbitration agreements unless the parties’ consent to postponement.
Parties to arbitration agreements or proceedings can waive or agree to modify these dispute resolution procedures as permitted by law.

LRC-CA-90.10
What are the regulations on workplace safety and health for employees in the United States – New York?

Evershine RD:

Federal

The Occupational Safety and Health Act (“OSHA”) requires employers to provide employees with a safe and healthy place of employment.
Workplace safety policies should include:

company goals, such as complying with applicable law or striving to eliminate workplace injuries
management commitment, including allocation of sufficient resources and participation in safety program activities
ways to encourage employee participation in workplace safety programs
outlines of employee responsibilities, such as wearing required protective equipment
procedures for analyzing the worksite for hazards and conducting initial and regular audits
provisions for posting safety-related information
accident investigation procedures
measures for preventing, controlling, and reporting hazards; and
safety training

The federal Occupational Safety and Health Act has no requirement that all employers adopt formal safety and health policies, although specific standards require certain employers to implement written programs outlining emergency action plans, chemical and hazard communication, energy control procedures, and similar safety training efforts.

States – New York

The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work.
Under the OSH law, employers have a responsibility to provide a safe workplace.
This is a short summary of key employer responsibilities:

Provide a workplace free from serious recognized hazards and comply with standards, rules and regulations issued under the OSH Act.
Examine workplace conditions to make sure they conform to applicable OSHA standards.
Make sure employees have and use safe tools and equipment and properly maintain this equipment.
Use color codes, posters, labels, or signs to warn employees of potential hazards.
Establish or update operating procedures and communicate them so that employees follow safety and health requirements.
Employers must provide safety training in a language and vocabulary workers can understand.

LRC-CA-100.10
What are the circumstances that an employer can terminate an employee in the United States – New York?

Evershine RD:

Federal
The employer or the employee may terminate the employment relationship at any time, for any (non-discriminatory or non-retaliatory) reason with or without notice.

States – New York

Employers can be subject to certain restrictions and requirements when employees separate from employment for voluntary or involuntary reasons.
Where the employee enjoys a contract for a definite term of employment, the employer cannot terminate the employee before the term ends unless the employer has “just cause” for termination.
Grounds providing Just Cause for Termination include theft and dishonesty, insubordination, disloyalty or breach of Fiduciary Duty, incompetence and inefficiency and employer dissatisfaction, absenteeism and tardiness, sexual harassment, and sexual misconduct.

LRC-CA-100.11
What is the notification period for terminating an employee in the United States – New York?
How much is the severance pay?

Evershine RD:

Federal

U.S. law does not impose a formal “notice period” to terminate an individual employment relationship.
Most employees are employed “at-will” and either party can terminate the employment relationship without notice.
The WARN Act notices must be given at least 60 calendar days prior to plant closings or mass layoffs.
Severance pays, compensation paid to an employee upon termination from employment, is not required by federal law.
There is no requirement in the Fair Labor Standards Act (FLSA) for severance pay.
However, employers are required to provide severance pay if stipulated in a contract, such as an employment contract.
Many employers offer severance pay to provide a source of income to involuntarily terminated employees.
In addition to involuntary terminations, some employers provide severance pay to employees whose employment is terminated voluntarily to secure certain promises from departing employees, such as waivers of claims or enforcement of noncompetition and other employment agreements.
Employers sometimes provide severance as a supplement to state unemployment insurance benefits.

States – New York

Employers can be required to notify former employees, within a period after they are terminated from employment, of their termination date and the date their employee benefits were canceled in connection with such termination.
New York doesn’t have a typical service letter requirement. (Service letters typically include information about dates of employment, the type of work performed, and the reason for separation from employment.)
However, employers must give employees who are terminated from employment a written notice of their termination date and the date their employee benefits were canceled in connection with such termination.
The notice must be provided within 5 workdays after the termination date.

LRC-CA-100.12
What is the reporting requirement for employers in the United States – New York to notify the termination of employees to the competent authority?

Evershine RD:

Federal

Terminations that are the result of a plant closing or a mass layoff trigger special notice obligations to unions under the federal Worker Adjustment and Retraining Notification (WARN) Act.
In those circumstances, the WARN Act requires an employer to provide at least 60 days’ notice to the chief elected officer of the exclusive representatives or bargaining agencies of affected employees.

States – New York

Employers can be required to report employee separations from employment, including the reason for separation, to a state agency for unemployment insurance benefit purposes.
Any requests for information from the department regarding former employees’ separation on Form LO 12, Request for Employment and Wage Data, should be furnished via mail or fax within 10 days of the postmarked date shown on the notice.

LRC-CA-100.20
What are the regulations on mass layoffs in the United States – New York?

Evershine RD:

Federal

The federal Worker Adjustment and Retraining Notification Act of 1988 requires employers to provide advance notice of plant closings and mass layoffs to employees or their union representatives, state dislocated worker units, and local government officials.
In general, the WARN Act applies to private employers with 100 or more employees and requires notice at least 60 days prior to qualifying layoffs and closings.

Employers are covered under the WARN Act if they have:

100 or more full-time employees; or
100 or more full- and part-time employees who work a combined total of at least 4,000 hours per week, excluding overtime.

The WARN Act applies to:

plant closings that cause employment loss to 50 or more full-time employees during any 30-day period.
mass layoffs that cause employment loss to 50 or more full-time employees and at least 33 percent of full-time employees during any 30-day period. If 500 or more full-time employees are affected by a mass layoff, the 33 percent requirement doesn’t apply; and
plant closings or mass layoffs that affect two or more groups of employees at a single site of employment within any 90-day period where the groups of employees individually don’t meet the minimum employee threshold for the WARN Act notice but added together exceed that threshold, unless employers demonstrate that the group terminations are for separate and distinct reasons and aren’t attempts to evade the WARN Act requirements.

States – New York

Employers are subject to the plant closing and mass layoff provisions if they plan relocations, plant closings, mass layoffs, or covered reductions in work hours and have:

50 or more employees in New York, excluding part-time employees; or
50 or more employees in New York, including part-time employees who work in the aggregate at least 2,000 hours per week (calculations of total weekly hours include overtime hours that employees work on a regular basis).

Employers that are planning relocations, plant closings, mass layoffs, or certain reductions in work hours must provide at least 90 days’ written notice of these actions to affected employees and their representatives, the New York State, and local workforce investment boards.

LRC-CA-100.30
What is the time limit for employers in the United States – New York to pay employees upon termination?

Evershine RD:

Federal

Federal law generally doesn’t govern final wage payments, but many states have requirements about the timing and calculation of those payments.

States – New York

Employers must pay wages to discharged employees on the next regular payday.

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