United States: What Will Be New In New York In The New Year?

Last Updated: December 13 2018
Article by Robert S. Whitman

Seyfarth Synopsis:  Democrats now control both houses of the New York Legislature as well as the Governor's office.  A host of new employment-related legislation may be in the offing, affecting matters such as wage deductions, employee privacy, and whistleblower protections.

Politicos across the country have commented extensively about the effect of the recent Midterm elections at the national level, especially the change in control of the House of Representatives.  Much less has been written about the comparable shift in New York State.  Starting in 2019, the Democrats will have an outright majority in the State Senate (40-23), and, with Governor Andrew Cuomo's reelection and a continuing Democratic majority in the Assembly, will have full control of the State's Executive and Legislative branches for the first time in decades.

What will this mean for employment legislation in New York?  The Legislature was not shy about new enactments even during the period of split control in the two chambers.  Now that there will single-party control, the odds of additional expansion of employees' rights appear to have increased considerably.  These laws could take the form not only of statutory enactments and amendments directly affecting the employment relationship, but also through laws that have indirect effects on the workplace, such as legalization of recreational marijuana use or a change to the State's health insurance system.

What follows is a brief summary of various employment-related bills that were introduced in the legislative session that ended in June 2018.  While predictions are hazardous, these bills may give clues of what employers can expect when the Legislature convenes for its new session in January 2019, this time with Democrats undeniably in charge.

Employer Access to Online Accounts

A5485, which had multiple sponsors, would prohibit employers from requiring employees and applicants to disclose their user names and passwords for online accounts (such as social media sites) and from demanding that they access their accounts in the employer's presence or reproduce any photos, video or other content from their personal accounts.  Several other states, including New Jersey, already have such laws in place.

Whistleblower Protection

The Labor Law currently contains a relatively narrow section protecting whistleblowers, applicable only when the employee's complaint concerns a matter of public health or safety.  A472 would broaden that provision to extend anti-retaliation protections to employees who disclose "an activity, policy or practice of the employer that is in violation of law, rule or regulation ... which constitutes a violation of the federal or state securities laws, financial or accounting fraud, or misappropriation or misuse of the funds of a financial institution, a hedge fund or private equity firm, or of the clients or customers of such organizations."  Another bill, A5757, would expand the Labor Law even further, to protect employees who report any "illegal business activity" of the employer.

Reproductive Rights

A566 would amend the Labor Law to prohibit discrimination or retaliation based on an employee's "reproductive health decision making" or that of the employee's dependents.  The bill had many co-sponsors in the Assembly and Senate, which may be an indication of broad support and increased chances of passage in the new session.

Covenants Not to Compete

New York is generally a favorable state for enforcement of covenants not to compete, but two bills would sharply restrict the population of employees with whom employers could enter into such agreements.  A1139, the Mobility and Opportunity for Vulnerable Employees Act, would amend the Labor Law to prohibit covenants for "low-wage" employees (as defined by certain earnings criteria).  Similarly, A7864 would prohibit non-competes for any employee who earns less than $75,000 per year, and for everyone else would require that the agreement be presented to the prospective or current employee at least 30 days before it takes effect.

Equal Pay

The proposed New York State Fair Pay Act (A4696), would expand the State's equal pay law to cover race and national origin as well as sex, and would prohibit inquiries into applicants' salary history.  (The latter is already the law in New York City and certain other municipalities.)

Workplace Harassment

Adding to the 2018 enactments concerning workplace harassment, A7808 would amend the Labor Law to provide that "No employee shall be subjected to an abusive work environment," defined as "an employment condition when an employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects that employee to  abusive conduct that causes physical harm, psychological harm or both."  The bill had many co-sponsors in the Assembly and Senate.

Employee Wage Lawsuits

Employers with operations in California are surely aware of that state's Private Attorney General Act, which authorizes private litigants to bring an action on behalf of public law enforcement agencies against employers for violations of the Labor Code.  In New York, legislators have proposed a counterpart law:  the Empowering People in Rights Enforcement (EMPIRE) Worker Protection Act (A7958).  The key provision of the proposed Act states:

An aggrieved employee or employees or a representative organization may initiate a public enforcement action on behalf of the commissioner [of the Department of Labor] for any provision of this chapter, or any regulation promulgated thereunder, that provides for a civil penalty to be assessed and collected by the commissioner for a violation of this chapter, or any regulation promulgated thereunder.

If enacted, the EMPIRE Act could prompt a fundamental change in enforcement of wage and hour laws in New York, including possible circumvention of class action waivers in arbitration agreements.

Minimum Wage

A4727 would prohibit any increase in the minimum wage or other provisions of a state Wage Order without action by the Legislature.  This legislation would effectively preclude New York City and other local governments from enacting their own minimum wage.

Personnel Records

A4836 would create a right of access to employee personnel records.

Employee Privacy

A5112 would require disclosure when an employer monitors its employees' telephone and electronic communications.

Bereavement Leave

Under A10639, the state's family leave law would be amended to permit leave for bereavement following the death of a family member.  This bill passed both chambers of the Legislature in June 2018, but Governor Cuomo did not sign it before the end of the legislative session.  Under State law, this is tantamount to a veto.

Confidentiality Clauses

A11301 would require employers to inform employees that non-disclosure / non-disparagement clauses in their employment contracts "cannot prevent them from speaking with law enforcement," the EEOC, the State Division of Human Rights, or a similar local agency.

Wage Deductions

As we have reported previously, the Labor Law provisions allowing deductions from wages for a variety of purposes, such as for wage advances and repayment of overpayments, expired in November 2018.  An Assembly bill, A10615, would have extended the expiration of that provision by another two years, to November 2020.  The bill passed both houses of the Legislature in June 2018, but the Governor failed to sign it before the session ended, thus effectively vetoing it.  As such, the law reverted to its pre-2012 version, under which deductions were allowed under a much narrower set of circumstances.

Employee Scheduling

The new year may see new developments in the regulatory as well as legislative arena.  In 2017, the State Department of Labor announced proposed rules that would significantly expand employees' entitlement to call-in pay.  While there has been little public activity on the proposals since then, the Department is issuing a revised proposed rule, with comments due in mid-January 2019.  Look for a separate update from Seyfarth Shaw on that proposal.

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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Robert S. Whitman
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