United States: New York's 5 Gifts For Employers In 2015: What State And City Employers Need To Know Heading Into The New Year (Day 5)

Last Updated: December 19 2014
Article by Cindy Schmitt Minniti and Mark S. Goldstein

Most Read Contributor in United States, October 2017

Each day this week, we will "unwrap" one of five pressing employment law issues on the 2015 horizon for New York state and city employers. Previously, we covered the minimum wage hike, the anticipated enforcement of two new NYC laws, the revamped NYC Commission on Human Rights, and the unsettled status of unpaid interns. Today's topic, the final one in this series, addresses proposed legislation.

New York employers in 2015 must stay abreast not only of laws that have actually been enacted recently, but also of a host of statutes and regulations that are pending – and which, if enacted, could have such a significant impact on "business-as-usual" so as to warrant advanced operational preparation.

Gov. Andrew Cuomo's proposed agenda in Albany is particularly noteworthy. Among other agenda items is the Women's Equality Act. It is a multifaceted plan that would, among other things:

  • Limit the current justifications in state law for paying men and women differently
  • Prohibit employers from terminating or retaliating against employees who share wage information
  • Increase liquidated damages to 300 percent where an employer willfully fails to pay required wages
  • Prohibit workplace discrimination based upon family status
  • Extend the prohibition on sexual harassment in the workplace to workplaces with fewer than four employees
  • Require employers to provide accommodations for pregnant employees, unless the requested accommodation imposes an undue hardship on the employer
  • Permit the recovery of attorneys' fees by successful litigants in sex discrimination cases

Expect Gov. Cuomo also to seriously mull legislation to further increase the state's minimum wage and/or to permit localities to set their own wage standards (initiatives for which NYC Mayor Bill de Blasio has been a strong advocate). Gov. Cuomo has also discussed eliminating the tip credit – which permits employers to pay tipped employees less than the minimum wage so long as the employees earn enough gratuities to make up the difference – a move that would most directly affect hospitality industry employers. A governor-convened wage board is expected to report in early 2015 on any recommended changes to the current tip credit structure.

And in NYC, the City Council is considering two bills that could uproot two mainstays of the hiring process: criminal history inquiries and credit checks. The Fair Chance Act, part of the "ban the box" trend sweeping the nation, would prohibit any inquiry or statement about a job-seeker's criminal history — including arrest or conviction records — made before a conditional offer of employment is extended. The Stop Credit Discrimination in Employment Act, for its part, seeks to ban any employment decision based on an applicant's "consumer credit history," which the proposed law defines as "any information bearing on an individual's credit worthiness, credit standing or credit capacity, including but not limited to an individual's credit score, credit account and other consumer account balances and payment history." Both bills are currently pending before the City Council's Committee on Civil Rights.

Finally, New York state and city employers should brace for highly anticipated guidance from the United States Department of Labor (USDOL) regarding the scope of certain exemptions under the federal Fair Labor Standards Act (FLSA). In March 2014, President Obama directed the USDOL to update and modernize existing overtime regulations for so-called "white collar" employees. In response to the president's mandate, the USDOL is in the midst of preparing a proposed regulation entitled, "Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees." The proposal will likely be unveiled within the first few months of 2015. It is expected to narrow the scope of the "white collar" exemptions – thereby making more workers eligible for overtime pay under federal law – and may increase the minimum weekly salary under the FLSA for exempt workers. Given that New York recognizes most of the FLSA exemptions, the USDOL's proposed regulation will be of utmost importance and may be cause for widespread employer audits of exempt/non-exempt classification schemes.

What Does This Mean for My Company?

New York employers can and indeed should expect a bevy of changes over the next year. From the minimum wage increase to expanded protections for pregnant employees to the use of unpaid labor, the New York employment law landscape remains in flux and is as dynamic as ever. Employers should therefore consult with experienced counsel immediately to discuss these issues and prepare a cogent plan of action to face them head-on.

Be sure that this is a New Year's resolution that you actually keep!

This article is presented for informational purposes only and is not intended to constitute legal advice.

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