Legal Briefs for HR #9 - 2009 (Con't)

-October 5, 2009-

# Heads? Up, New York ? Effective 10-26-09, employers in New York will need to provide all newly hired employees with written notice of the employee?s rate of pay and identify the normal paydays. Non-exempt workers must also be advised of their overtime rate of pay and employers must retain a signed written acknowledgment from each employee, upon hire, of receipt of this written notice. The notice must comply with requirements set by the Commissioner of Labor, but no sample form has been provided yet. Don?t forget that overtime in most jurisdictions is 1.5 times the ?regular rate? of pay, which in some cases is not the same thing as the employee?s hourly rate or ?straight time? rate. If you?d like to see full text of the new law, you can find NY state laws at http://public.leginfo.state.ny.us and this provision is section 195 of the Labor Law (LAB).
# More Contractor Conundrum ? As example of the creeping erosion between employee and contractor status, the Third Circuit Court of Appeals has allowed an independent contractor to pursue race discrimination claims under 42 U.S.C. sec. 1981 (aka Civil Rights Act of 1866) against her former employer. Brown v. J. Kaz, Inc. (3rd Cir. 9-09). This is not a case where the court found an employee had been misclassified as a contractor, since the plaintiff could schedule her own sales appointments, was not provided with a sales script (only a ban on making misleading statements about the product, an automatic bed) and she provided her own sales equipment, office space and transportation. As a contractor, Title VII and the state?s fair employment practice law did not apply to her. Instead, the court followed the lead of three other Circuit Courts of Appeal in noting that Sec. 1981, a post-Civil War enactment, provides that all persons shall have the right to make and enforce contracts as white citizens do. The law has been applied to employment relationships, whether at-will or contractual in nature, and now to independent contractor relationships, too. Lesson learned? Although it?s unlikely that many employers are utilizing contractors in lieu of employees to avoid liability under anti-discrimination laws, those that are using contractors should be aware of this emerging right to pursue actual or perceived racial discrimination.
# E-Verify FAQ ? Many bankers have wondered if they are considered federal contractors for purposes of being subject to the E-Verify mandate which took effect on 9-8-09. The regulations explain that ?Agreements or activities performed by financial institutions that are not subject to the FAR (Federal Acquisition Regulation) are not required to comply with the e-Verify provisions and clauses of the FAR.? Since issue of or payment on U.S. Savings Bonds and being FDIC insured are not covered by the FAR, a bank will not trigger E-Verify coverage by engaging in those activities. Also, financial agency agreements (FAAs) between banks and the federal government are not subject to the FAR either.
# For the Birds ? If you like being ?tweeted? and want breaking news on employment law changes, follow me on Twitter. I?m at @amross.

Until next time,
Audrey E. Mross
Labor & Employment Attorney
Munck Carter LLP
600 Banner Place
12770 Coit Road
Dallas, TX 75251
972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)
amross@munckcarter.com
www.munckcarter.com

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