New York State Amends Employee Notice at Time of Hiring Requirements

On July 28, 2009, New York Governor David Paterson signed legislation that requires employers to give new employees at the time of their hiring written notification stating their rate of pay, overtime rate of pay and regular pay day. The new law requires the employer to obtain a written acknowledgement from employees indicating receipt of the notice. The legislation, effective for all employees hired on or after October 26, 2009, amends Section 195(1) of the New York Labor Law.

In a statement in support of the legislation, the Legislature stated that by requiring employers to notify overtime-eligible employees of the regular hourly rate and overtime rate of pay, employees will be able to compute the overtime that they are entitled.

As a practical matter, the change in the legislation will require the employer to determine, in advance, whether newly hired employees qualify for an overtime exemption. The determination whether an employee is eligible for overtime must be done in accordance with State and Federal overtime requirements.

Failure to comply with this law can result in a civil penalty of up to $1000 for a first violation, $2000 for a second violation or $3000 for a third or subsequent violation. In assessing a violation, the size of the employer’s business, good faith of the employer, and history of previous violations are considered.

New York employers should review and amend their policies to comply with this new legislation. For unionized employers, there is no indication of whether their labor agreement will suffice as the required notice. Employers should monitor future Department of Labor regulations for requirements on the specifics of the written notification and acknowledgement.

For more information contact John R. Vreeland.

 

New York State Amends Employee Notice at Time of Hiring Requirements

On July 28, 2009, New York Governor David Paterson signed legislation that requires employers to give new employees at the time of their hiring written notification stating their rate of pay, overtime rate of pay and regular pay day. The new law requires the employer to obtain a written acknowledgement from employees indicating receipt of the notice. The legislation, effective for all employees hired on or after October 26, 2009, amends Section 195(1) of the New York Labor Law.

In a statement in support of the legislation, the Legislature stated that by requiring employers to notify overtime-eligible employees of the regular hourly rate and overtime rate of pay, employees will be able to compute the overtime that they are entitled.

As a practical matter, the change in the legislation will require the employer to determine, in advance, whether newly hired employees qualify for an overtime exemption. The determination whether an employee is eligible for overtime must be done in accordance with State and Federal overtime requirements.

Failure to comply with this law can result in a civil penalty of up to $1000 for a first violation, $2000 for a second violation or $3000 for a third or subsequent violation. In assessing a violation, the size of the employer’s business, good faith of the employer, and history of previous violations are considered.

New York employers should review and amend their policies to comply with this new legislation. For unionized employers, there is no indication of whether their labor agreement will suffice as the required notice. Employers should monitor future Department of Labor regulations for requirements on the specifics of the written notification and acknowledgement.

For more information contact John R. Vreeland.

 

New York State Amends Employee Notice at Time of Hiring Requirements

On July 28, 2009, New York Governor David Paterson signed legislation that requires employers to give new employees at the time of their hiring written notification stating their rate of pay, overtime rate of pay and regular pay day. The new law requires the employer to obtain a written acknowledgement from employees indicating receipt of the notice. The legislation, effective for all employees hired on or after October 26, 2009, amends Section 195(1) of the New York Labor Law.

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John Petrella to Speak at NJBIA Seminar

Partner John Petrella will speak at the NJBIA seminar entitled, “Hot Legal Topics for Employers” on Friday, October 2nd. The seminar will cover current legal issues facing businesses, including Hiring and Firing Pitfalls, Discrimination and Harassment Prevention and Paid Family Leave Policy, among others. Other speakers will be Pam Moore of McCarter & English, LLP; Peter Pizzi of Connell Foley, LLP; Richard Schey of Jackson Lewis, LLP and Mark Tabakman of Fox Rothchild.

Click here for more information or to register for this event.

 

Violence Prevention in Health Care Facilities

On December 17, 2007, the New Jersey Legislature enacted the “Violence Prevention in Health Care Facilities Act,” N.J.S.A. 26:2H-5.17 et seq. (the “Act”). The Act was signed into law on January 3, 2008 with a timetable for covered health care facilities to establish violence prevention programs and plans for the benefit of health care workers as well as patients and visitors. According to the legislative statements accompanying the Act, the law was enacted to counter what the Legislature deems to be an unacceptable level of violence in the health care workplace today.

Health care facilities covered by the Act are general or special hospitals or nursing homes licensed by the New Jersey Department of Health and Senior Services, State and county psychiatric hospitals, and State developmental centers. The Act defines “violence” or a “violent act” as any physical assault, or any physical or credible verbal threat of assault or harm, against a health care worker.

Within 6 months, by July 3, 2008, each health care facility was required to establish a violence prevention program containing at least a violence prevention committee that includes a member of management to oversee the entire program. At least half of the members of the committee must be health care workers who have contact with patients, while the rest of the committee members must have experience, expertise or responsibility relevant to violence prevention.

Within 18 months, by July 3, 2009, each committee was required to develop and maintain a detailed, written violence prevention plan that identifies workplace risks as well as methods to address them. The plan must include an annual comprehensive violence risk-assessment detailing the various factors that play a role in the level of risk of violence, such as the facility’s layout, alarm devices, review of violence related records and violence prevention policies. Each facility’s plan should be custom tailored to address its own risks and needs.

The facility must make a copy of the plan available, upon request, to the Commissioners of the Departments of Health and Senior Services and Human Services for on-site inspection, and upon request, to each health care worker and collective bargaining agent that represents health care workers at the facility. However, if the violence prevention committee determines that the plan contains information that would pose a threat to security if made public, the facility may exclude that information before providing copies to workers or collective bargaining agents.

The Act also requires annual violence prevention training as well as the employment of personnel with sufficient training to appropriately identify and handle risks and incidents of violence. In the event of a violent act, the law requires that the health care facility keep, and make accessible to all the health care workers, their authorized representatives and the Department of Health, a detailed record of the violent act for at least 5 years. Additionally, each facility is required to establish a post-incident response system in order to provide support and counseling to victims of violence. The Act prohibits any form of retaliatory action against health care workers who report incidents of violence.

For more information, please contact Celia S. Bosco.

This alert is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. It is recommended that readers not rely on this publication but that professional advice be sought for individual matters.

 

Violence Prevention in Health Care Facilities

Publication: GBV LAW

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On December 17, 2007, the New Jersey Legislature enacted the “Violence Prevention in Health Care Facilities Act.” N.J.S.A. 26:2H-5.17 et seq. (the “Act”). The Act was signed into law on January 3, 2008…

New Law Authorizes Conversion of Age Restricted Housing

On July 2, 2009, a new statute became effective which permits developers to convert age-restricted residential developments to non-age-restricted developments (“converted development”), N.J.S.A. 45:22A-46.3 et seq.

Under the terms of the law, for a developer to be eligible for the conversion from age-restricted to converted development, the developer must set aside 20 percent of the units for affordable housing. The law provides that the units that are set aside for affordable housing will count toward a municipality’s affordable housing obligation. However, none of the units in the development will generate growth share obligation under the Fair Housing Act.

An application seeking amended approval must include documentation that the parking, recreational facilities, water supply system and wastewater system will be adequate to serve the converted development. If the approved facilities are not adequate to meet the needs of the converted development, and if any such need is not able to be met by adding additional parking, recreational facilities, water supply or sewer capability, then the number of dwelling units are required to be reduced accordingly. If additional parking is provided and increases the amount of impervious cover by more than one percent, the storm water system calculations and improvements must be revised accordingly.

A dwelling unit in a converted development must conform to all the requirements as to size and square footage imposed pursuant to the approving board’s original approval. The floor plans of the units may be revised without any further review or board approval. The layout of a subdivision or site plan also may be reasonably revised to accommodate additional parking, recreation improvements, infrastructure enhancements, a needed reduction in the number of units, height requirements, revision to dwelling footprints that do not modify square footage of the development or the individual dwellings, or a needed change to construct the affordable units as attached housing. Changes to the size, heights, floor area ratio, number of bedrooms and total square footage of buildings established as part of an age-restricted development shall not be increased, but may be decreased for a converted development. However, the number of bedrooms for the affordable units only may be increased within the footprint to meet the bedroom distribution requirements as established in the Uniform Housing Affordability Controls.

In order to change an age-restricted development into a converted development, a developer must file an application with the Planning Board or Board of Adjustment that originally approved the application. Additionally, a developer must file notice of the application with the municipal clerk of the municipality in which the development is located and provide notice of the approving board hearing as required by the Municipal Land Use Law. The law requires that the proposed converted development be considered a permitted use and does not require a use variance.

Application for conversion to a non age-restricted development must be filed with the approving board by August 1, 2011. The approving board can extend this time period until August 1, 2013 if it finds that poor economic conditions continue to adversely affect the real estate market.

The approving board has thirty days from the time of the submission of an amended application in which to determine completeness. Within 60 days of a determination of application completeness, the board is required to render a decision on an application for a converted development, unless the time frame is extended by the applicant. If no decision is rendered within the time period, the application will be deemed approved.

If the approving board determines that the requirements of the law have been met and the conversion can be granted without substantial detriment to the public good and with no substantial impairment to the intent and purpose to the zone plan and zoning ordinance, then the law requires that the application for conversion be approved. There is no application fee, however, reasonable escrow fees may be charged. After the development has been converted, the developer must file a copy of the revised subdivision or the site plan approval with the municipal engineer. These documents will provide a base for calculations of any required inspection escrow accounts, and performance and maintenance guaranties.

In the event that an approving board denies an application for a converted development or imposes conditions that are unacceptable, an applicant may, within 30 days of the receipt of the decision, appeal the decision to a court in a summary manner. In considering an appeal, the court is required to consider the reasonableness of the approving board’s decision and if it finds that the conversion should have been approved, will order the Board’s approval along with any reasonable conditions of approval.

For more information, please contact William F. Harrison.

This alert is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. It is recommended that readers not rely on this publication but that professional advice be sought for individual matters.

 

American Recovery & Reinvestment Act Contains Complex Procurement Requirements

Introduction 

In February, President Barack Obama signed the American Recovery and Reinvestment Act of 2009. According to its supporters, the Act is designed to jumpstart a sluggish economy and control the growing unemployment rate. It authorizes $60 billion in contract spending to fund, among other things, projects to modernize roads, transit systems, bridges and schools throughout the United States.[i] In fact, state and federal officials have already contracted with businesses to begin spending the stimulus funds.[ii] However, the ARRA also imposes a variety of contracting requirements for businesses who engage in these public works and public building projects for state and local governments.[iii]

While the Act creates significant opportunities for contractors, states and local governments, these opportunities are accompanied by a new set of obligations. Essentially, businesses that are funded “in whole or in part by Recovery funds” must comply with federal contracting requirements under the Federal Acquisitions Regulations. What’s more, passage of this Act significantly modifies accepted procedures under current public contracts law for municipalities around the country by increasing the obligations of both companies and government.

American Recovery & Reinvestment Act – The Basics

ARRA includes various “use it or lose it” provisions that force contracting agencies to use approximately $120 billion dollars almost immediately following its passage.[iv] In order to achieve its goals of “unprecedented” transparency and “maximum competition,”[v] the Act outlines obligations for contracting agencies and federal contractors to prevent co-mingling of stimulus funds and to track where, when and how stimulus funds are spent.[vi] Moreover, to aide in this effort, the Act created the Recovery Act Accountability and Transparency Board as well as federal online accounting tools.[vii]

Responsibilities of Agency Contracting Officers

Under the ARRA, state and local agencies providing contracts with stimulus funds should promote transparency and competition.[viii] Contracts funded under the Act should, to the maximum extent possible, be awarded using competitive procedures.[ix] Any contract that is not awarded using these competitive procedures must be posted under a special section of the Recovery Website and all contract awards must be entered into the Federal Procurement Data System.[x] Moreover, on the FedBizOpps.gov site, contracting officers must identify the action by posting pre-solicitation notices, announce contract awards and provide a rationale for awarding any contract that is not fixed priced or competitive.[xi]

Pre-award notifications is required for task and delivery contracts worth more than $25,000 and post-award publications are required for contracts, task, modifications or delivery orders over $500,000. These post-award publications describe the products and services in a clear and unambiguous manner to the public.[xii]

ARRA-What do Contractors Need to Know?

The ARRA increases contractor responsibilities by mandating periodic disclosure reports, purchase requirements on contract materials, encouraging governmental access to company records and personnel and minimum wage requirements, to list a few.[xiii] It is crucial for contractors to adhere to these provisions because failure to abide by rules and regulations can result in fines, contract termination or criminal investigation.

A. Reporting Requirements

All contractors receiving partial or complete Recovery funds for a contract must adhere to the ARRA’s strict reporting obligations. Unlike most local governments’ public contracting requirements, these reporting obligations apply to contracts below the $25,000 threshold, commercial item contracts and Commercially Available Off-The-Shelf (COTS) item contracts.[xiv] Under the Act, contractors must file quarterly reports detailing the contract amount, the dollar amount from the contractor invoices, supplies or services delivered and performed to date.[xv] The reports, due no later than 10 days after the close of the calendar quarter, must also include an assessment of the completion status of work, an estimate of the number and types of jobs created, as well as the number and types of jobs retained due to Recovery Funds.[xvi]

Because of the huge emphasis on transparency, contractors, and even first-tier subcontractors, must provide the names and total compensation for their five most highly compensated officers for the calendar year in which the contract was awarded. This disclosure is required only if the contractor, in the preceding fiscal year, received 80% or more of its annual gross revenue from Federal contracts, grants, loans and cooperative agreements, $25 million in annual gross revenues from federal funding sources and the information is inaccessible to the public under the Securities Exchange Act or the Internal Revenue Code.[xvii] Finally, since contractors must also provide detailed information on all first-tier subcontractors with subcontracts over $25,000, a limited burden is placed on first-tier subcontractors as well.[xviii]

However, the federal government has attempted to make periodic disclosures manageable for contractors by constructing an online reporting tool for the upcoming disclosure report due on October 10, 2009.[xix] The site, www.FederalReporting.gov, also allows contracting officers to track the progress of contract performance.[xx] Moreover, all disclosed information will be available to the public.

B. “Buy American” Requirements

The Act prohibits the use of iron, steel and manufactured goods that are not produced in the United States for public work projects.[xxi] However, contractors must still comply with United States international agreement obligations if the contract’s estimated acquisition value is over $7.443 million. This responsibility to use American products is waived in only three circumstances: 1) iron, steel or manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of satisfactory quality; 2) the use of these goods will increase contract costs by more than 25%; or 3) applying the domestic preference would be inconsistent with the public interest.[xxii] On the other hand, construction materials remain covered by the provisions of the Buy American Act. Any unmanufactured article, material or supply bought for incorporation into the building or work must also originate from the United States.[xxiii]

C. Increased Whistleblower Protections

The ARRA increases whistleblower protections for employees of any employer who receives a contract, grant or other payment appropriated or made available by the stimulus bill, including private employers and federal, state and local government contractors and subcontractors.[xxiv] Unlike the narrowly drawn whistleblower laws that protect private sector employees, crafted to protect concerns about public health, public safety or violations of the law, the ARRA applies the federal whistleblower protections that were designed to protect concerns about mismanagement, waste and abuse of public funds.[xxv]

Non-Federal employers are prohibited from retaliating or discriminating against any employee as a reprisal for disclosing covered information to a supervisor or specific categories of government officials[1], including the Recovery Act Accountability and Transparency Board.[xxvi] Employees must have a reasonable belief that this covered information is evidence of gross mismanagement of the contract or subcontract; gross waste of covered funds; any abuse related to implementation or use of public funds or a violation of law, rule, or regulation related to an agency contract; or that implementation or use of these covered funds present a substantial and specific danger to public health or safety.[xxvii] The protections[2] expressly cover internal disclosures, including those made in the ordinary course of work. Finally, the Act expressly prohibits pre-dispute arbitration agreements with respect to whistleblower provisions.[xxviii]

D. Wage Requirements 

All contractors are subject to the wage requirements of the Davis-Bacon Act and the McNamara-O-Hara Service Contract Act. The Davis-Bacon Act requires that contractors pay specified minimum wages to various classes of laborers and mechanics employed under public works contracts over $2000.[xxix] Workers, who work directly on the worksite, must be paid “no less than locally prevailing wages and fringe benefits paid on projects of a similar character.”[xxx] These wage rates are determined by the Secretary of Labor.[xxxi]

The Service Contract Act applies to prime contracts exceeding $25,000.[xxxii] It requires contracts and subcontracts to pay service employees, in various classes, the wage rates and fringe benefits found in the prevailing locality or the rate contained in the contractor’s collective bargaining agreement.[xxxiii] For contracts equal to or less than $25,000, contractors must pay the federal minimum wage.[xxxiv] For prime contracts exceeding $100,000, contractors and subcontractors must also pay laborers and mechanics, including guards and watchmen, one and a half times their regular pay rate if they work over 40 hours in a regular workweek.[xxxv]

Access to Company Employees for Audits 

The Act gives auditing and supervisory power to the Government Accountability Office (GAO) and agency inspector generals (IGs).[xxxvi] Both the GAO and agency IG’s can audit prime contracts and subcontracts as well as interview prime contractor personnel.[xxxvii] However, only the GAO can interview subcontractor personnel, even for contracts under the simplified threshold. These provisions also apply to commercial item contracts and COTS Item Contracts.[xxxviii]

Conclusion

The compliance obligations will undoubtedly change and perhaps increase overtime as the Recovery Board and the Office of Management and Budget review periodic reports and document the success or pitfalls of the Act. Moreover, since these changes in compliance for federal contracts could expose contractors to new legal liabilities both now and in the future, contractors should always be “on the lookout” for new rules or regulations.

——————————————————————————–

[1] Categories of government officials include the following entities or their representatives: a member of Congress, a court or grand jury, the head of a federal agency, a state or federal regulatory or law enforcement agency, and Inspector General, the Comptroller.

[2] Whistleblower protections also apply to the competition for or negotiation of a contract.

——————————————————————————–

[i] Donald G. Featherstun, General Partner, Seyfarth Shaw LLP & Donald F. Innis, Shareholder, Rogers Joseph O’Donnell, Council Meeting of the American Bar Association Section of Public Contract Law: Implementation of the American Recovery and Reinvestment Act, Slide 3 (May 16, 2009).

[ii] See generally, Bryan Cave LLP, American Recovery and Reinvestment Act of 2009: Shovel-Ready Projects-Challenges and Strategic Opportunities (March 5, 2009) http:// www.bryancave.com (follow “Bulletins” hyperlink; then follow “American Recovery and Reinvestment Act of 2009 Shovel-Ready Projects-Challenges and Strategic Opportunities” hyperlink).

[iii] Id.

[iv] Id.

[v] Posting of Michael Payne to Federal Construction Contracting Blog, The American Recovery and Reinvestment Act of 2009: What it Means for Federal Construction Contractors, http://federalconstruction.phslegal.com (follow “Federal Procurement Policy” hyperlink) (May 16, 2009, 9:33 E.S.T.).

[vi] Id.

[vii] Featherstun, supra note 1, at 8-10.

[viii] Id. at 8, 17.

[ix] Id. at 17.

[x] FAR Case 2009-010, Interim Rule, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-Publicizing Contract Actions, 74 Fed. Reg. 14,636-14,639 (Mar. 31, 2009).

[xi] Id. at 14,637.

[xii] Featherstun, supra note 1, at 20.

[xiii] See generally, American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (2009).

[xiv] FAR Case 2009-009, Interim Rule, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-Reporting Requirements, 74 Fed. Reg. 14,639-14,646 (Mar. 31, 2009). Featherstun, supra note 1, at 21.

[xv] FAR Case 2009-009, Interim Rule, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-Reporting Requirements, 74 Fed. Reg. 14,640 (Mar. 31, 2009).

[xvi] Id. at 14,641-14,642. Payne, supra note 5. See also, Featherstun, supra note 1, at 22.

[xvii] FAR Case 2009-009, Interim Rule, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-Reporting Requirements, 74 Fed. Reg. 14,642 (Mar. 31, 2009). Featherstun, supra note 1, at 23.

[xviii] Id. 14,639-14,646.

[xix] Featherstun, supra note 1, at 9.

[xx] Id. at 16.

[xxi] FAR Case 2009-008, Interim Rule, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-Buy American Requirements for Construction Material, 74 Fed. Reg. 14, 623-14,633 (Mar. 31, 2009).

[xxii]Id. at 14, 624-14,625 (Mar. 31, 2009). Featherstun, supra note 1, at 36.

[xxiii] FAR Case 2009-008, Interim Rule, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-Buy American Requirements for Construction Material, 74 Fed. Reg. 14, 623-14,633 (Mar. 31, 2009).

[xxiv] FAR Case 2009-012, Interim Rule, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-Whistleblower Protections, 74 Fed. Reg. 14,634-14,635 (Mar. 31, 2009). See also, Featherstun, supra note 1, at 24. HRTools, How Do Whistleblower Provisions in the American Recovery and Reinvestment Act (ARRA) of 2009 Affect Employers? https://www.hrtools.com/legal_compliance/how_do_the_whistleblower_provisions_in_the_american_recovery_and_reinvestment_act_(arra)_of_2009_affect_employers.aspx [hereinafter Whistleblower Provisions].

[xxv] Id.

[xxvi] FAR Case 2009-012, Interim Rule, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-Whistleblower Protections, 74 Fed. Reg. 14,635 (Mar. 31, 2009).

[xxvii] Id. See also, Whistleblower Provisions, supra note 24.

[xxviii] [xxviii] FAR Case 2009-012, Interim Rule, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-Whistleblower Protections, 74 Fed. Reg. 14,635 (Mar. 31, 2009).

[xxix] Davis-Bacon Act 40 U.S.C. § 3142 (1931).

[xxx] Id.

[xxxi] Id.

[xxxii] The Service Contract Act of 1965 41 U.S.C. § 351 (1965).

[xxxiii] Id.

[xxxiv] Id.

[xxxv] Id.

[xxxvi] FAR Case 2009-011, Interim Rule, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-GAO/IG Access, 74 Fed. Reg. 14,646-14,649 (Mar. 31, 2009). Payne, supra note 5.

[xxxvii] Id. at 14,646-14,647.

[xxxviii] FAR Case 2009-011, Interim Rule, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-GAO/IG Access, 74 Fed. Reg. 14,647 (Mar. 31, 2009).

For more infomation, please contact Francis J. Vernoia.

This alert is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. It is recommended that readers not rely on this publication but that professional advice be sought for individual matters.

 

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