Ask HR

Yes, it is a valid concern.

Let’s break it down and explore why.

Once an employee is terminated—whether or not for cause—a former employer should have policies to govern the post-employment relationship.

At a bare minimum, these policies should address:

• If/how dates of employment are verified
• If/how references are given
• How requests for contact information are handled
• How former employee requests for information and action are addressed

This last item is the territory we’re in right now.

For a host of reasons (respectful relations, consistency and accuracy of information, liability...), requests for information and action[1] from former employees should be handled by one person[2] (even if that person ends up bringing in other people).

For (a positive) example, if a former employee requests a reference five years after leaving employment, the request should go to the designated person, even if the recommendation letter ends up being signed by the board president. This will ensure the request and the recommendation is handled just like any other, which avoids accusations of favoritism or inaccuracy.

For a not-so-positive example, if a former employee is seeking information for a legal claim (workers’ comp, wrongful termination, unemployment), that request should go to the designated person, even if the recommendation letter ends up being signed by the board president. This ensures that the information will be released only after the proper releases are in place (for instance, before a recommendation is sent, it is wise to get a waiver of liability).

The reason this “one stop shop” approach is important is because information from different sources can (in our positive scenario) result in inconsistent information that could hurt the former employee or (in our negative scenario) could result in a trustee or director providing information that could harm the library and even serve as the basis for a legal claim.

Trustees, in particular, should be mindful of their “duty of loyalty” when considering a post-employment request. The “duty of loyalty” means that when taking an action as a trustee (such as answering questions from former employees about their employment), the trustee is keeping in mind the interests of the library. If the library has a policy on post-employment inquiries, the trustee should also keep in mind the “duty of obedience,” which would require them to follow the policy.

This does not mean that library trustees and other leaders shouldn’t elevate the concerns of former workers! It just means that when they do so, it is per policy, and organized in way that doesn’t create undue risk to the library.[3] If the library messed up, that needs to be corrected, but from the legal perspective, how something is done is just as important as it getting done.

So, when there is a post-employment inquiry, follow the policy to respond to it. If there is no policy, adopt one.

Thank you for a great question.

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.

From the legal perspective, this question has a very simple answer: when it comes to gender, people should be referred to in the way they request to be referred to.  So, until the student informs you that the way they wish to be addressed (by name, pronoun, or honorific) has changed, it is good to stick with the last thing they told you.

This is also a good approach from the practical perspective.  Not every person who shows physical signifiers typically associated with a change of pronouns is transitioning.  Some people may experience physical changes, but their gender will remain the same.  Still others may have zero perceptible physical changes but need to change names and pronouns.[1]  All of which are compelling reasons to let the people take the lead in defining themselves, and not ask, but be ready to listen if they make a request.

That said, your instinct that this student may at some point ask to be referred to in a different way might be right on, and it is good to recognize that your support may be important to them.

So: how can a worker support a co-worker by letting them know they would honor a request to change a defining[2] part of their identity?

Unfortunately, some of the most fundamental ways to create a trans-inclusive work environment—policy, and leadership action—might not be accessible even to a supervisor.  Policies governing use of name tags, signature lines, and other ways of normalizing clarity of pronoun use and inclusive language (not starting meetings with "ladies and gentlemen",[3] for instance) can all be used to create an environment where it might be easier for a person to define themselves.[4]

But what about supervisors and co-workers who can't control all of that?

In the higher education environment, it is important to remember that for student workers, their relationship with co-workers may be one of the more meaningful routine interactions a student has with a supportive elder/mentor.  That spirit is part of this question; the member has known the student for years and wants to let them know they can safely embrace any new identity with them.

But the fact is: the student will likely only take that step when they feel it is safe for the student to do so.

So, rather than asking, it is best to simply let the student know that you are a person who cares for their well-being, and that you respect the person they are.  If you would like, you can also model that you are personally trans-inclusive, by saying or displaying supportive things (even a button or sticker can be a positive sign to someone seeking support).

But at the same time, co-workers seeking to support a person need to remember that as a co-worker, they are only a part of an overall work environment.  While a co-worker may be supportive, a person might not be ready to trust the entire work environment with a name change or other shift in identity.  That is a personal decision, and the best thing a co-worker can do is empower that person and give them the time and space to make it themselves.

By letting a person know you respect them, and that you value them, you create the space for them to share what's important to them on their own terms.

So, my HR advice is to not ask, but to consider the ways in which your work and work environment provides you with opportunities to create an inclusive space for both your co-worker and for all people who are LGBTQ+.

Thank you for a compassionate question.