Benefits

Great questions!

Let's tackle[1] them:

Is this true?

Yes.  If you would like to look up the text of the law, which went into effect on November 13th, 2023, you can find it here: https://www.nysenate.gov/legislation/laws/LAB/590.

Does this new law really apply to ALL employers in New York (even a town or village public library)?

Yes.  Unlike other sections of the Labor Law, which sometimes define "employer" in a way that can exclude certain public libraries, the new Section 590(2) is part of Article 18 (“Unemployment Insurance Law”) of the Labor Law; Article 18 applies to ALL employers in New York State, even government entities.

Does this new law apply even if the employee is resigning or retiring?

Yes.  It also applies of the employee was on a contract that expired, was on a grant that ran out, was a seasonal employee, or any of a number of other reasons why a person who once has a job no longer has a job.[2]  Basically, if an employee is no longer an employee, or if an employee's hours have been cut to below 30, the notice must be provided.

Does this new law apply to no-show employees, those who requested to work less hours, or others who may have abandoned their employment?

Yes.  Even when an employee quits by attrition, asks to work below 30 hours a week, or goes away on vacation and never comes back,[3] an employer must determine what date is the date they were "separated" from employment, or the effective date of the reduction, and give the required notice.

Is there a form for this notice?

Yes!

The New York Department of Labor's newly revised "Record of Employment" form can be found at https://dol.ny.gov/system/files/documents/2023/11/ia12.3_0.pdf.

When does this notice have to be provided?

The new law requires employers to provide the notice "upon separation."  The DOL form's instructions say to "give this form to anyone who is permanently, indefinitely, or temporarily laid off; discharged; quits; or has their hours reduced to 30 or less each week"—with no mention of precise timing.

For that reason, until there is further guidance, the notice must be given as soon as possible.

For those whose status change is easy to pinpoint (for instance, when an employer tells an employee their job has been eliminated), the completed form should be given at the same time as the notice of termination. 

For slightly less definitive situations—such as when an employee fails to show up but doesn't call or quit—the completed form should be mailed[4] as soon as the failure to show up is converted to a termination.

This means a few things:

First, it means that if an employer has been a bit loosey-goosey[5] about when people are "separated from employment",[6] they need to tighten things up going forward.

Second, it means that if a public library has been a bit unclear on who provides the unemployment insurance (the library? … the municipality?), clarity on that topic must be achieved (and demonstrated via the "Record of Employment" form).

Third, for those employers who maintain a checklist of items to do when an employee is "separated from employment" (return keys, terminate passwords, update website and social media access, etc.), the "Record of Employment" form can be a new item on the "to-do" list.

Fourth, for those employers who must follow Labor Law Section 195(6),[7] your organization is already obligated to confirm separation of employment in writing within 5 days of the date of termination.  For employers obligated to provide this "195(6) letter", the "Record of Employment form" information regarding the last date of employment should be consistent with the information in the 195(6) letter.[8] 

Why was this law passed?

When considering this law, the New York State Assembly wrote in the legislative memo:

Many workers, when laid off or subject to a reduction in working hours, do not realize they are eligible for unemployment assistance.  Particularly in the case of partial unemployment assistance there is a lack of awareness about eligibility. To compound this issue, employers are disincentivized from informing their employees about eligibility because their unemployment insurance payments may increase when employees or former employees file for unemployment assistance. In the wake of catastrophic job losses caused by the COVID-19 pandemic, it has become clearer than ever that underemployed workers need robust public support mechanisms to weather an economic storm.  By requiring employers to inform employees who are laid off, or who have had their hours reduced, of their potential eligibility for unemployment assistance, this bill bestows on workers better awareness of their rights and options for supporting themselves and their families when they need it the most.

In other words: people entitled to benefits didn't know they could get them.  This new notice requirement is to make sure such people are aware and are able to timely apply.

Is there a model policy for this law?

Employers do not have to have a written policy to comply with the law, but for those who want to adopt a policy to help assure compliance, here is a template[9] to work from:

Policy

To document compliance with Labor Law Section 590(2), it is the policy of the INSERT NAME to immediately provide each former employee with a completed "Record of Employment" (as such form is maintained by the New York Department of Labor) upon:

• Notice of termination
• Confirmation of separation from employment due to retirement
• Termination due to abandonment of the job by the employee ("no-show")
• Voluntary resignation
• Reduction of hours to less than 30 per week

Such documentation shall be as contemporaneous with the separation of employment or reduction of hours as possible, but in no event shall it be later than five (5) days after the last date of employment or effective date of the reduction.

I recently had a chance to check in with the New York State Comptroller's legal department[1] on this very topic.

The reason I had to check in is because the most recent on-point authority I could find on this subject was from 1981. 

The input I got from the legal department was re-assuring: no change in guidance in the almost four decades that followed.[2]

Now, that said, the attorney at the Comptroller's gave me the usual disclaimer that I often give in "Ask the Lawyer": It's just an opinion.  The law can change.  Check with your lawyer, since your charter, bylaws, and policies, or even a contract, could change how this applies to you."

But that said, below are the reassuring words of Comptroller Opinion #445, circa 1981.  Since they are a little heavy on the legalese and citation, I've put the important part in bold:

"As a general rule, the town library board of trustees, and not the town board, has the authority to appoint and dismiss library personnel (Education Law, §§ 226(7), 260; 30 Opns St Comp, 1974, p 98). The library board exercises direct control and supervision over library personnel and, for most purposes, including labor negotiations [**486] under the Taylor Law (Civil Service [*2] Law, §§ 200, et seq.), the library board is considered to be the employer of library personnel (County of Erie v. Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515; Binghamton Public Library Unit v. City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515; Opns St Comp, 1972, No. 72-402, unreported; cf. Retirement and Social Security Law, § 30(c); Opns St Comp, 1980, No. 80-199, as yet unreported; Finkelstein v. Central School District, 34 AD2d 781, 311 NYS2d 243 affd 28 NY2d 705, 320 NYS2d 751). Compensation for library personnel is fixed by the library board and paid from the library fund (Education Law, §§ 226(7), 259(1)). It would then follow that, as between the town board and the library board, it is the library board which determines the vacation and sick leave benefits for library employees. It is our opinion that a library board of trustees has implied authority to provide for sick leaves and vacations for library employees (see Opn No. 80- 199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7), 260). We note that expenditures for employer contributions to the New York State Employees' Retirement System for library employees are expenses [*3] incurred for the operation of the library and should be paid from library funds (Opns St Comp, 1975, No. 75-903, unreported; 16 Ed Dep't Rep, 1977, p 416). The same would hold true for employer contributions for social security and unemployment insurance for library employees." [emphasis added].

So, with regard to the member's specific situation, I of course have to say: " It's just an opinion.  The law can change.  Check with your lawyer, since your charter, bylaws, and policies, or even a contract, could change how this applies to you."  But if all of those things have been checked, and there is no provision changing the default, the Comptroller's words from 1981 still apply.

I hope this will help as your library works to retain that one week of paid leave!

Thanks for a great question.

Supplementary Answer

NOTE: For libraries that are running into this type of issue with their sponsoring municipalities, below, please find "some additional input" that I hope can be of help:

As many of you know, my law office has the privilege of working with libraries across New York.  It is work my team and I value highly, because it connects us with a vast "information army" of committed, creative librarians who are dedicated to public service.

This work also gives us an array of windows into what is happening "out there," especially when it comes to public libraries working with their districts and municipalities on issues like the one shown in this question.  And while each specific view from any particular window is confidential, it positions my team to distill a lot of anecdotal information,[3] and to share what we see in the aggregate.

Based on what we are seeing "in the aggregate" the type of issue brought forward by the member has always been an "issue," but with the budget pressures and political theater ushered in by the events of 2020, it appears positioned to become an "Issue" into 2021 and beyond. 

The emergence of this Issue isn't just a by-product of budget woes heightened by pandemic.  It is also the result of a rapidly evolving regime of employment law in New York, making the distinction between government and "private" employers more critical, with every passing day.  This distinction impacts things such as: comp time, overtime, minimum wage, insurance, liability, civil rights claims, labor law claims, and things that may seem mundane, but are actually quite important (such as: "Whose HR manual do we follow?").

If you take a quick scan of the "Ask the Lawyer" searchable index,[4] you'll see that numerous member questions arise from this "Public Library as Employer" divide. And while they relate to different aspects of the library-as-employer, they all touch on one very specific priority: public library board authority.  And it's apparent that this is something some sponsoring municipalities and districts have a challenge grasping.

So, in an effort to provide a short, succinct resource for libraries to direct their government entities to when they try to interfere with hiring, try to control employee benefits, or otherwise try to interrupt the autonomy of duly elected/appointed trustees in the governance of a chartered public library, I am posting this memo on my firm's website at https://www.stephaniecoleadams.com/adamsblog/2021/1/7/comments-on-public-library-board-autonomy, without the usual snarky asides and footnote commentary. 

Hopefully it can help avoid some of the needless argument and hostility that these misunderstandings can create.  If you find it helpful, please let us[5] know.

--Cole

Comments on Library Board Autonomy

Law and current legal authority firmly establish that public library boards are the sole authority regarding employee terms of employment, including hiring, compensation, benefits, evaluation, promotion, discipline, and termination. 

This autonomy is constrained only by a public library board's need to observe the New York Civil Service Law, the New York Education Law, numerous state and federal labor laws, various applicable regulations, and a library's own charter and bylaws. 

The law does allow a public library to use, in whole or in part, the payroll system, policies, and benefits systems of their sponsoring government entity, if such resources are offered to the library by that entity.  Further, the government entity, in making such an offer, may condition such use on the library's cooperation with certain reporting procedures or methods of documentation.  The choice to use such offered resources, however, is ultimately at the discretion of the library's board, who may instead decide to have the library implement its own system. 

And finally, the choice as to how to expend library funds with respect to employees (salary, benefits, paid time off) always rests solely with a public library's board.

The legal authority establishing these considerations is extensive, but a thorough summary is set forth in the links and content below.

https://www.osc.state.ny.us/legal-opinions/opinion-93-15, which states:

"The ultimate control of the use, disposition and expenditure of the library fund moneys is vested in the library board even when the municipal treasurer has custody (1991 Opns St Comp No. 91-57, p 158). Further, even if the treasurer of the sponsoring municipality is custodian of the library fund, the library board would have custody of private source moneys of the library (1988 Opns St Comp No. 88-76, p 145; 1980 Opns St Comp No. 80-340, p 101).

Public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see Opn No. 91-57, supra; 1983 Opns St Comp No. 83-32, p 37; Buffalo Library v Erie County, 171 AD2d 369, 577 NYS2d 993 affd 80 NY2d 938, 591 NYS2d 131). In addition, public library officers and employees are often not considered to be officers and employees of the sponsoring municipality or school district (see, e.g., General Municipal Law, §800[5], conflicts of interest; Public Officers Law, §10, official oaths; Binghamton Public Library v City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515 and County of Erie v Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515, collective bargaining negotiations). In view of the library's fiscal autonomy, it is our opinion that library trustees and the separate library treasurer are not town officers or employees for purposes of Town Law, §123 and, therefore, are not subject to the accounting and auditing provisions of that section.

We note, however, that General Municipal Law, §30(3) requires that an annual report of financial transactions, including those involving private source moneys (Opn No. 88-76, supra), be made by the treasurer of each public library. The report must be certified by the officer making the same and, unless an extension of time is granted, must be filed with the Office of the State Comptroller within 60 days after the close of the library's fiscal year (General Municipal Law, §30[5]). In addition, the Education Law contains certain requirements for public libraries to report to the State Education Department (see Education Law, §§215, 263). Finally, as noted in Opn No. 88-76, supra, the town board, in determining the amount to be raised by taxes for library purposes, may take into account a library's private source funds and, therefore, may request from the library information concerning such funds."

https://www.osc.state.ny.us/legal-opinions/opinion-91-57, which states:

"With respect to library moneys, however, we note that public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see, e.g., 1983 Opns St Comp No. 83-32, p 38). Thus, the ultimate control of the use, disposition, and expenditure of those moneys is vested in the library board of trustees even if the municipal treasurer is the custodian of library moneys. (Education Law, §§226[6], 259[1]; 1987 Opns St Comp No. 87-84, p 125; see also Opn No. 87-49, supra; Opn No. 86-54, supra). In addition, it is the library board of trustees which may authorize the investment of library moneys even when the moneys are held in the custody of the municipal treasurer (Opn No. 86-54, supra). Therefore, since the library board controls the use and disposition of library fund moneys, it is our opinion that the library board must consent to any arrangement under which library fund moneys are to be comingled with moneys of the municipality."

https://www.osc.state.ny.us/legal-opinions/opinion-2001-12, regarding indemnification of library trustees, which states:

"PUBLIC OFFICERS LAW §18: There are two alternatives for conferring the benefits of section 18 of the Public Officers Law on employees of a public library: either (1) the board of trustees of the library may elect to confer the benefits of section 18 on library employees as a public library expense; or (2) the governing board of the sponsoring municipality or school district may confer section 18 benefits on library employees as a direct expense of the sponsor."

Comptroller Opinion #445, which states:

"As a general rule, the town library board of trustees, and not the town board, has the authority to appoint and dismiss library personnel (Education Law, §§ 226(7), 260; 30 Opns St Comp, 1974, p 98). The library board exercises direct control and supervision over library personnel and, for most purposes, including labor negotiations [**486] under the Taylor Law (Civil Service [*2] Law, §§ 200, et seq.), the library board is considered to be the employer of library personnel (County of Erie v. Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515; Binghamton Public Library Unit v. City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515; Opns St Comp, 1972, No. 72-402, unreported; cf. Retirement and Social Security Law, § 30(c); Opns St Comp, 1980, No. 80-199, as yet unreported; Finkelstein v. Central School District, 34 AD2d 781, 311 NYS2d 243 affd 28 NY2d 705, 320 NYS2d 751). Compensation for library personnel is fixed by the library board and paid from the library fund (Education Law, §§ 226(7), 259(1)). It would then follow that, as between the town board and the library board, it is the library board which determines the vacation and sick leave benefits for library employees. It is our opinion that a library board of trustees has implied authority to provide for sick leaves and vacations for library employees (see Opn No. 80- 199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7), 260). We note that expenditures for employer contributions to the New York State Employees' Retirement System for library employees are expenses [*3] incurred for the operation of the library and should be paid from library funds (Opns St Comp, 1975, No. 75-903, unreported; 16 Ed Dep't Rep, 1977, p 416). The same would hold true for employer contributions for social security and unemployment insurance for library employees."

I hope this information is of assistance.

[1] This is like a guitar player saying they recently got to jam with John Mayer.

[2] In fact, to bolster the 1981 opinion I found, they sent me an even older opinion.

[3] I appreciate that anecdotal information is not precise data analysis.  For that, I rely on the system, councils, LibDev, and NYLA.  I fall into those data rabbit holes regularly.

[4] I am very gratified to have been doing this long enough to warrant a searchable index.

[5] Write to adams@losapllc.com and jill@losapllc.com.