United States: 2017 New York Employment Law Update

In 2017, multiple laws were passed or went into effect both in New York City and across the state of New York. All employers doing business in New York State should take note of the applicable new laws to ensure that their policies and procedures are in compliance. 

Below is a summary of the most significant new laws affecting the workplace. The New York employment attorneys at Lewis Brisbois are available to assist employers with respect to compliance as to these changes, as well as the myriad of other employment laws and regulations facing employers.

Changes Affecting All New York State Employers

Minimum Wage

The minimum wage for employees continues its incremental rise to $15.00 per hour by 2021. This year, on December 31, 2017, the following rates are in effect:

  • New York City Employers (11 employees or more) - $13.00 per hour
  • New York City Employers (10 employees or less) - $12.00 per hour
  • New York City Fast Food Employers - $13.50 per hour
  • New York State Fast Food Employers - $11.75 per hour
  • Long Island & Westchester Employers - $11.00 per hour
  • Employers in the Other Regions of New York - $10.40 per hour

As always, employers remain required to post a Minimum Wage Information poster conspicuously in their establishments.

Paid Family Leave

New York State passed a new Paid Family Leave Law ("PFL") that goes into effect on January 1, 2018. This new law requires most New York employers to provide employees with up to 12 weeks of paid leave, paid for through insurance coverage funded by the employer via deductions from paychecks. This paid leave is provided in three situations:

  • For the birth, adoption, or placement of a new child;
  • To care for a family member with a serious health condition; or
  • For a qualifying exigency arising from a family member's military service (as is defined in the federal Family and Medical Leave Act).

PFL does not apply to an employee's own health condition. Employers that currently receive NY State Disability Benefits coverage through a private carrier must obtain PFL coverage through the same carrier. Employers which do not currently have disability benefits coverage through a private carrier may want to either purchase coverage through a private carrier or through the New York State Insurance Fund or apply to the New York State Workers' Compensation Board for approval as a self-insured employer. 

As of January 1, 2018, eligible employees are entitled to a total of eight weeks of paid family leave during any given 52-week period. During the 2018 calendar year, an employee is entitled to a maximum of 50% of his or her average weekly wage, maxing out at $652.96 per week. These numbers will escalate in the coming years.

Fair Workweek Laws

On November 26, 2017, New York City's new Fair Workweek Laws went into effect, imposing various scheduling limitations on retail and fast food employers.

With respect to retailers, the new law bans on-call scheduling for employers with at least 20 employees primarily engaged in the sale of consumer goods in New York City. Under the law, retailers must provide written work schedules to employees at least 72 hours in advance of scheduled work hours, post the schedule in a conspicuous workplace location, update it as needed, and notify employees of any changes at least 72 hours in advance unless one of the few exceptions apply.

The new laws are particularly onerous on the fast food industry, placing a heavy administrative burden on management and administration. The laws limit fast food employers' ability to change workers' schedules, require premium pay for last-minute schedule changes, establish minimum time between shifts, restrict on-call scheduling, and provide a good faith estimate of employees' schedules. The most burdensome of these regulations, however, requires fast food establishments to offer "additional shifts" to all current employees before hiring new employees. Employers are obligated to create and notify employees of a standardized method for how "additional shift" offers will be posted and advise employees upon their hiring as to that method. These "additional shifts" must be posted for current employees for three consecutive calendar days, or as long as "practicable after finding out about the need to fill the shift." Employers must accept incumbent employees' offers to work pieces of these "additional shifts" rather than rejecting it because the full shift cannot be handled by a single current employee.

The new laws also allow workers to remit some of their pay to nonprofit advocacy groups through a legal payroll deduction. 

As a result of these laws, New York City retailers and fast food employers should determine whether their current practices and policies need to be amended to comply with these local laws.

Proposed New York State Call-In Pay

Not to be outdone, New York Governor Andrew Cuomo announced in November new proposed regulations for "call in" pay and scheduling applicable to all employers in the State. Currently, non-exempt employees who report to work are currently entitled to call-in pay equal to the lesser of four hours of pay or pay for the number of hours in the regularly-scheduled shift, at the state minimum wage rate. If these new regulations take effect, there are certain situations in which employees will be eligible to receive call-in pay. Under the new regime, the following categories of employees would be entitled to call-in pay:

  • Employees who report to work for a shift that was not scheduled at least 14 days in advance will be entitled to an additional 2 hours of call-in pay;
  • Employees whose shifts are cancelled within 72 hours of the start of that shift will be entitled to at least four hours of call-in pay;
  • Employees who are required to be on call and available to report to work or any shift will be entitled to at least four hours of call-in pay; and
  • Employees who are required to be in contact with their employers within 72 hours of the start of a shift to confirm whether or not to report to work for that shift will be entitled to four hours of call-in pay.

Currently, these state regulations are open to public comment and are not yet adopted.

New Notice Requirements for Direct Deposit Pay

Effective March 7, 2017, New York employers who pay wages via direct deposit and payroll debit card have more stringent requirements to comply with. These new requirements apply to all employees who work in New York State except for executive, administrative, and professional employees earning more than $900 per week, as well as employees who work on farms not connected to a factory. Now, prior to issuing payments via direct deposit or debit card, employers must obtain signed consent from employees. Employees can withdraw these signed consents at any time. Employers cannot threaten adverse action to employees who refuse to provide the consent; nor may they condition the employees' hire or continued employment on the employees' willingness to provide such consent. Employers must also provide a written notice that: (1) describes all of the employees' options for receiving wages; (2) states that employees are not required to accept their wages by direct deposit or debit card; (3) states that employees will not be charged any fees for services necessary to access their wages; and (4) if offering employees the option to receive payment via debit card, a list of locations where employees can withdraw their wages (or a link to a website with this list). The notice and consent requirements must be provided in English as well as in the employees' primary language so long as the Department of Labor has issued a template notice and consent in that language.

Changes for New York City Employers

Salary Inquiry Ban

Effective October 31, 2017, New York City employers with four or more employees are prohibited from asking job applicants about their salary, benefits, or other compensation history during the hiring process. Employers who discover this information about a job applicant are further prevented from relying on it when making hiring decisions or negotiating salary or benefits.

The new law, which Mayor Bill de Blasio's administration has hailed as "a milestone achievement in the fight for pay equity," is designed to help close the gender pay gap by eliminating employers' reliance on prior salary histories to set compensation levels. In response, employers should review their job application forms and interview checklists, as well as consult and train all employees involved in the hiring process to ensure that they are informed and trained on the new law. Revisions of employee handbooks and manuals may also be called for.

New York City Fair Chance Act

On August 5, 2017, the final version of the Fair Chance Act ("FCA") took effect. Under the FCA, New York City employers with at least four employees are prohibited from inquiring about a job applicant's criminal history in job postings, employment applications, or any type of inquiry during the interview process itself until after a conditional offer of employment has been made to the applicant.

New Freelancer Protections

Effective May 15, 2017, New York City's Freelance Isn't Free Act requires companies who engage freelance workers to provide a written contract for any independent contractor providing $800 or more in services, as well as payment in full within 30 days of completion of the work. The penalties for violating the law are severe, providing for double damages, attorneys' fees and costs, and a potential $250 penalty.

Earned Sick Time Act Amended to Include Domestic Violence Victims

A new ordinance has been adopted, effective on May 5, 2018, which expands the list of covered reasons for which an employee can use his or her accrued paid sick leave. Sick leave will include "safe time," which is defined as "when the employee or a family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking." Leave related to "safe time" can be used by an employee for various enumerated reasons including to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program or to file a complaint or domestic incident report with law enforcement. Leave can also be used under the somewhat "catch all" reason "to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or family member or to protect those who associate or work with the employee."

Gender Neutral Restrooms

As of January 1, 2017, all publicly accessible single-occupant restrooms in New York City must be gender neutral. New York City establishments are required to remove gender-specific signs from their single-occupant bathrooms and replace them with signage that appropriately indicates that the restrooms may be used by anyone regardless of gender. Every building in the city that has a single-occupant restroom that is publicly accessible — including offices, restaurants, and bars — is affected by the law. However, the law does not apply to single-sex multiple stall restrooms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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