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Open Meetings Law Will Require State Agencies To Live Stream Meetings

It is about time that the State of New York finally catches up to what the town of Penfield is already doing!  For many years, local towns like Penfield have have broadcast public meetings over their local public access cable television stations.  Several years ago, Penfield began broadcasting public meetings–both hearings and work sessions–in full high-definition on the Internet.  Once that happened, you no longer needed to have access to the town’s cable access channel.  You can now watch meetings of the town, zoning, and planning boards from anywhere in the world–as long as you have Internet access.

On December 11, 2015, the State of New York enacted an amendment to the Open Meetings Law (L.2015, ch.519), adding a new subdivision (f) to Section 103 of the Public Officers Law.  Starting next month, open meetings of agencies (which for the purposes of this new subdivision generally include only state agencies) shall be broadcast to the public and maintained as records of the agency.  The new subdivision also generally requires agencies to stream such meetings in real-time, and post video of the meetings on the agency’s website within and for a reasonable time after the meeting.  One caveat, though, is that agencies are only required to stream and post the meetings if they already maintain a regularly and routinely updated website, and if they already utilize a high-speed Internet connection.  Don’t all state agencies maintain updated websites, with high-speed connections?  They should.

Even though the Governor was criticized for his recent FOIL vetoes, this amendment gives good government groups at least one small victory this term.  As noted by the sponsor’s memorandum in support of the legislation:

This legislation would help increase transparency by allowing people to virtually participate in open meetings, without imposing additional burdens on public bodies.  Moreover, making the content of these meetings easily available to the public would reduce the likelihood of repeated questions to the agency, the impact of misinformation, and the number of individual FOIL requests.

In the past, I have viewed live-streaming and archived video of oral arguments at the Court of Appeals.  Living and working more than three hours away from Albany, it would not have been practical for me to do that for the cases I was able to observe without the Internet capabilities of the Court.  The availability of live-streaming and video archiving now enables those of us in Western New York to more easily observe our government in action.  I am looking forward to the opportunity to observe the agencies in the executive branch from the comfort of my office in Rochester.  The amendment takes effect on January 10, 2016.

LOSAP Penalty for NY Public Employees Removed

Many fire districts have established Length of Service Award Programs (“LOSAPs”) in an effort to recruit and retain volunteer firefighters.  The service awards provided under these LOSAPs relate to credits earned annually by performing various volunteer firefighting functions for a period of years, and are generally paid on a monthly basis upon the participating volunteer reaching a certain age.

Previously, public employees who serve as volunteer firefighters were unfairly penalized, in that they were not permitted to earn any credit for responding to calls during the individual’s regularly assigned work periods.  Effective immediately, this penalty no longer applies.

The Memorandum of Support accompanying Chapter 535 of the Laws of 2015 notes the absurdity of the prior restriction:

Section 217(f) of the [General Municipal Law] precludes a volunteer firefighter who provides firefighter services (generally, emergency services) during his or her “regularly assigned work periods” from receiving LOSAP credit for those services. So, in spite of the increasingly desperate need to attract folks willing to undergo hundreds of hours of required training and stay active for many, many years to earn any marginally-significant LOSAP benefits, public employees are “dis-incented” from providing volunteer firefighter services for circumstances over which they have no control and which may already cause them significant employment-related penalties.

Thankfully, on December 11, 2015, the Governor signed legislation to repeal this penalty, effective immediately.

Shareholders of Foreign Corporations Liable for Wages?

Shareholder Liability Extended to Foreign CorporationsLast year, I wrote a post about amendments to the Wage Theft Prevention Act that added a provision to the New York Limited Liability Company Law, imposing personal liability on the members of a limited liability company with the ten largest ownership interests for the failure of the company to pay the wages of its employees. These amendments were similar to provisions already contained in Section 630 of the New York Business Corporation Law, which imposes personal liability on the ten largest shareholders of a corporation (other than a publicly-traded corporation) for the unpaid wages of employees of the corporation.

On November 20, 2015, the Governor signed an amendment to Section 630 [Chapter 421 of the Laws of 2015], which extends the reach of this provision to foreign corporations, when the unpaid services were performed within New York.

Although the law has been criticized because “it might turn business away from New York,” I do not necessarily see it this way.  That’s because shareholder liability is not automatic.  Before an employee can charge a shareholder for such unpaid wages, the employee must first provide a notice in writing to the shareholder, within 180 days after termination, advising the shareholder that he or she intends to hold the shareholder liable under this section.  The employee cannot commence an action against the shareholder until after the return of an execution unsatisfied against the corporation upon a judgment recovered against it for such services.  Once an execution is returned unsatisfied, the employee must then commence his or her action within ninety days.

Therefore, as long as the company has sufficient assets to cover the amount of any unpaid wages, the shareholders aren’t likely to be concerned about this possible liability.  Also, depending on the amount owed, it may not be cost effective for the employee to hire an attorney to prosecute these two lawsuits–even with the prospect of attorney’s fees and liquidated damages that are both recoverable under Article 6 of the Labor Law.  But, a word of caution.  Even though lawsuits under Section 630 are rare, I can think of at least one time in my nearly 20 years of practice that I was able to recover against shareholders for failure to pay wages of a former employee.

The sponsor’s memorandum of support for this legislation includes some interesting historical background discussing the reasons why the Legislature originally imposed shareholder liability for unpaid wages, as well as a discussion of how it came to be that foreign corporations were not covered by these provisions.  But, what should be highlighted here is the primary reason for this amendment, which was to eliminate discrimination against New York corporations in favor of foreign (out of state) corporations insofar as liability for unpaid wages is concerned:

It should be noted that this Legislature recently recognized the problem revealed during the recent economic collapse in which unscrupulous businesses opened and closed without paying wages due their employees.  The Legislature increased the penalty for failure to pay wages to 100% of the wages owed.  However, the penalty is meaningless if the employee lacks an effective remedy for recovering his or her unpaid wages.  The amendment strengthens existing remedies.

The amendment will be effective on January 19, 2016.


Seat Belt Use Required For Volunteer Firefighters

Volunteer Fire Fighters Now Must Buckle-Up!

Volunteer Firefighters Now Must Buckle-Up!

When New York’s Seat Belt Law was originally enacted in 1984, the Legislature exempted “authorized emergency vehicles” from the definition of “motor vehicles” whose operators and passengers had to be restrained by safety belts, because it was believed that the operators of these vehicles needed to be able to perform their duties in an “unhampered fashion.” However, that is about to change for volunteer firefighters.

On November 20, 2015, the Governor signed an amendment to the Seat Belt Law (Chapter 448 of the Laws of 2015), which now includes vehicles owned or operated by volunteer fire departments within the definition of “motor vehicles” whose operators and passengers must be restrained.  The amendment also applies to ambulances owned or operated by voluntary ambulance services as well.  However, the safety restraint requirements still do not apply: (a) to a passenger in the rear seat of a fire vehicle or ambulance if the seat is not required to be equipped with safety belts, nor (b) to emergency medical personnel during the course of providing patient care in the rear compartment of an ambulance in accordance with applicable patient care standards, guidelines and protocols established pursuant to the Public Health Law.

In support of this legislation, the sponsor’s memorandum noted:

The single largest cause of Volunteer Firefighter and EMS responder death is vehicle accidents to and from an incident scene. The largest contributor to those deaths is failure to wear seat belts.  Volunteers would like the current exemption removed from the law making New York law consistent with the training and operational procedures currently in place to promote seat belt use.

Use of seat belts promotes safety and saves lives. Since buckling a seat belt takes just a few seconds, fire and ambulance vehicles should be required to use them. This bill is strongly supported by the Fireman’s Association of the State of New York.

This amendment will not take effect until November 1, 2016.


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