United States: Year-End Update On NYS And NYC Employment Laws

Over the past several years, both New York State and New York City have enacted significant new employment and labor laws. This Update summarizes the key laws you should be following and the penalties for violations1.

LAWS DISCUSSED
New York City Laws
NYC Earned Safe and Sick Time Act (ESSTA)
NYC Anti – Sexual Harassment Law
NYC Fair Chance Act
NYC Stop Credit Discrimination in Employment
NYC Salary History Ban
NYC Temporary Schedule Change Law
NYC Fair Work Week Laws
NYC Freelance Isn't Free Act (FIFA)
NYC Cooperative Dialogue Law
New York State Laws
NYS Minimum Wage Law
NYS Salary Thresholds for Exempt Employees
NYS Paid Family Leave Law
NYS Anti – Sexual Harassment Law
NYS Corrections Law 23-A
NYS Wage Theft Prevention Act (WTPA)

NYS Minimum Wage Law || Effective: December 31, 2018

Effective December 31, 2018, the statewide minimum wage will increase, depending on employer location, employer size and industry.

*Tip allowance/credit varies depending on employer industry. For more information, please visit: https://www.ny.gov/new-york-states-minimum-wage/new-york-states-minimum-wage.

What if you fail to comply? Employers that violate the Minimum Wage Law are liable for wage underpayments and liquidated damages, plus interest, civil and criminal penalties.

2. FLSA: NYS Salary Threshold for Exempt Employees || Effective: December 31, 2018

Effective December 31, 2018, NYS will increase the salary threshold for administrative and executive exempt employees, depending on where the employer is located, as shown on the chart below. These thresholds are significantly higher than the federal salary minimums. (NYS has no minimum salary for professional employees, whereas the federal minimum salary is $455/week, or $23,660/year.) Because December 31, 2018 falls on a Monday this year, and the overtime exemption analysis is applied on a workweek by workweek basis, if an employer intends to increase the salary of an employee, the increase should go into effect on the first day of the workweek (usually the payroll week) in which December 31, 2018 falls, or the employee will lose the exemption for that workweek. If an employer intends to reclassify as non-exempt an employee who currently earns less than the new salary threshold, it should begin tracking hours for any overtime pay due the employee on the first day of the workweek in which December 31, 2018 falls. Note that all exempt employees must also meet a "duties" requirement to qualify for an exemption from overtime. Employees being re-classified from exempt to non-exempt status must also be given a Wage Theft Prevention Act Notice (see Section 12 herein).

What if you fail to comply? Administrative and executive employees who are not paid these salary minimums must be paid overtime for any work hours over 40 in a workweek, calculated based on the employee's "regular rate" for that week. Under NYS labor law, you are liable for a 100% penalty on any unpaid overtime amount, plus interest and may be held personally responsible for unpaid wages.

3. New York City Earned Sick Time Act (ESTA) /New York City Earned Safe and Sick Time Act (ESSTA) ||Effective: April 1, 2014; amended: May 5, 2018

All NYC employers with five or more employees must provide employees up to 40 hours of paid safe/sick time per year. An eligible employee is an employee working within NYC for more than 80 hours in a calendar year.

Employees accrue one hour of safe/sick time for every 30 hours worked. Accrual begins on the employee's first day of work, but cannot be used until 120 days after their date of employment. Employees can use their time for a variety of reasons relating to their own health or a family member's and for certain non-health related reasons concerning the employee's safety. At the end of a year, the employer may pay out accrued and unused safe/sick time or allow the employee to roll it over to the next year. If it is paid out, the employer has to front load 40 hours of safe/sick time for the employee at the beginning of the next calendar year.

Employers with fewer than five employees must provide unpaid safe and sick leave.

What if you fail to comply? Employers may be held liable for civil penalties of $500 per employee for each first-time violation. Subsequent violations may result in fines up to $1,000. Further damages include paying three times the wages that should have been paid for each time an employee took sick leave but was not paid, as well as full compensation and appropriate equitable relief each time the employer fires an employee for taking sick leave.

4 . N e w Y o r k S t a t e P a i d F a m i l y L e a v e L a w | | E f f e c t i v e : J a n u a r y 1 , 2 0 1 8

Private employers with one or more employees are required to provide eligible employees with paid leave: a) to bond with a newly born, adopted or fostered child, b) to care for a close relative with a serious health condition, or c) to assist loved ones when a family member is deployed abroad on active military service. An eligible full – time employee is one that has worked for a covered employer for at least 26 consecutive weeks. Eligible employees are guaranteed: paid time off for 8 weeks in 2018 (capped at 50% of the statewide average weekly pay), increasing to 12 weeks by 2021 (capped at 67% of the statewide average weekly pay), job protection upon return from leave, and continuation of health insurance while on leave. Employers are also required to obtain Paid Family Leave insurance, post a Notice of Compliance in plain view and inform employees of their Paid Family Leave benefits and rights.

What if you fail to comply? Employers who fail to make provisions for the payment of family leave benefits (e.g., failing to obtain Paid Family Leave insurance), may be criminally liable for a misdemeanor and civilly liable for a fine up to $500, or imprisonment of up to one year, or both. Subsequent violations may result in fines up to $2,500.

5 . NYC & NYS Anti – Sexual Harassment Laws || Effective: October 9, 2018 (NYS)/April 1, 2019 (NYC)

Effective 10/09/18, all NYS covered employers must adopt a sexual harassment prevention policy and provide anti-sexual harassment training to all part time, full time, seasonal and temporary employees. Training must be completed by October 9, 2019. Mandatory arbitration for sexual harassment claims is prohibited (although this portion of the law may be subject to challenge as preempted by the Federal Arbitration Act) and employers may no longer use non-disclosure agreements in private settlements of sexual harassment claims unless the claimant voluntarily consents.

Effective 04/01/19, under the Stop Sexual Harassment in NYC Act (the "Act"), all NYC employers with 15 or more employees are required to conduct annual anti-sexual harassment training for all employees. Employers have one year to complete this training. Moreover, under this Act, employers will be required to display an antisexual harassment rights and responsibilities poster and distribute an information sheet on sexual harassment to new hires.

NYS also extended coverage under its sexual harassment law to independent contractors, making employers liable for sexual harassment of independent contractors by their employees.

What if you fail to comply? Employers who violate the New York State Human Rights Law ("NYSHRL"), may be criminally liable for a misdemeanor and civilly liable for a fine up to $500, or imprisonment of up to one year, or both, as well as held liable for compensatory, emotional injury and punitive damages if a claim is filed with the State Division on Human Rights or a complaint is filed in court. Employers who violate the New York City Human Rights Law ("NYCHRL") may be civilly liable for a fine up to $125,000, and up to $250,000 if it's a willful violation. Employers are liable for compensatory, emotional injury and punitive damages if a sexual harassment claim is filed with the New York City Commission on Human Rights or a complaint is filed in court.

6. NYS State Corrections Law 23-A & NYC Fair Chance Act || Effective: October 27, 2015 (NYC)

Under the NYS State Corrections Law 23-A ("Article 23-A"), an employer or agency has long been prohibited from denying an application for employment or license to an individual previously convicted of one or more criminal offenses, unless there is a direct relationship between the applicant's criminal history and the employment or license sought and/or the issuance of a license or employment would prove an unreasonable risk to the employer, the public or other individuals.

Under the more recently enacted NYC Fair Chance Act, NYC employers, with few exceptions, are not allowed to inquire about or consider the criminal history of job applicants until after extending a conditional offer of employment. If, after evaluating the applicant according to Article 23-A, an employer wishes to refuse employment, it must follow the Fair Chance Process: presenting the applicant with a written copy of its inquiry and analysis of the applicant's conviction history, along with at least 3 business days for the applicant to respond.

What if you fail to comply? Employers who violate Article 23-A may be held criminally liable for a misdemeanor and civilly liable for a fine up to $500, or imprisonment of up to one year, or both. Employers who violate the Fair Chance Act may be held liable for lost wages and other damages to the employees affected and may be subject to civil penalties of up to $125,000. A willful violation may be subject to a civil penalty of up to $250,000.

7. NYC Stop Credit Discrimination in Employment Act || Effective: September 3, 2015

NYC employers with more than four employees are prohibited from using an employee's credit history to decide whether to hire, fire or promote an individual. Employers are prohibited from asking about an applicant's and current employee's credit history, credit report, charged-off debts, items in collections, bankruptcies, judgments, and liens. Covered employees need not work in NYC, and include full-time, part-time workers, interns and independent contractors.

What if you fail to comply? Employers who violate the Stop Credit Discrimination Act may be held liable for lost wages and other damages to the employees affected and may be subject to civil penalties of up to $125,000. A willful violation may be subject to a civil penalty of up to $250,000.

8. N Y C S a l a r y H i s t o ry B a n | | Effective: O c t o b e r 3 1 , 2 0 1 7

Public and private NYC employers of any size are prohibited from asking about or relying on an applicant's salary history during the hiring process, including on applications, and in interviews. The law covers most applicants for new employment in NYC regardless of whether the position is full-time, part-time, or an internship. Independent contractors who do not have their own employees are also covered.

What if you fail to comply? Employers who violate the Salary History Ban may be held liable for lost wages and other damages to the employees affected and subject to civil penalties of up to $125,000. A wilful violation may be subject to a civil penalty of up to $250,000.

9. NYC Temporary Schedule Change Law || Effective: July 18, 2018

Employees who work more than 80 hours in a calendar year in NYC and are employed for 120 or more days have a right to temporary changes to their work schedule for certain "personal events." An employer must grant an employee's request for a temporary change up to two times per calendar year, each request totaling one business day. Covered personal events include: a) to care for a minor child or a disabled family member, b) to attend a legal proceeding for subsistence benefits to which the employee or a family member is a party, or c) any reason that constitutes permissible safe/sick time under ESSTA. Employers are also required to post a "You Have the Right to Temporary Changes to Your Work Schedule" notice where employees can easily see it in each NYC workplace.

What if you fail to comply? Employers may be held liable for compensatory damages or other relief to the employee and a $500 civil penalty for each violation per employee. Employers who retaliate against an employee for requesting a temporary schedule change are subject to additional penalties, including a $2,500 fine for terminating an employee, plus reinstatement and back pay.

10. NYC Fair Work Week Laws || Effective: November 26, 2017

Fast food employers must give fast food employees good faith estimates of when and how much they will work, predictable work schedules and the opportunity to work newly available shifts before hiring new workers. Employers are also prohibited from scheduling employees to work the closing shift one day and work the opening shift the next (also known as "clopening"), unless the employees consent in writing and are paid a $100 premium to work the shift.

Retail employers must give retail employees their written work schedule at least 72 hours before the start of the schedule and cannot modify the schedule (e.g. canceling, rescheduling shifts) with less than 72 hours' notice without the written affirmation of the employee. Employers are also prohibited from requiring on-call shifts, where employees are ready and available to work at any time the employer demands.

Both retail and fast food employers must post the notice "You Have a Right to a Predictable Work Schedule" where employees can easily see it at each NYC workplace.

What if you fail to comply? Employers may be held liable for compensatory damages or other relief to the employee and a $500 civil penalty for each violation per employee.

11. NYC Freelance Isn't Free Act (FIFA) || Effective: M a y 1 5, 2 0 1 7

Freelance workers retained as independent contractors have the right to: a) a written contract if the freelance work is for a fee of at least $800 (including multiple small projects over a 120-day period), b) timely and in full payment for services, and c) freedom from retaliation for exercising their rights under the law.

What if you fail to comply? Employers who violate FIFA may be subject to penalties for violations, including statutory damages, double damages, injunctive relief, and attorney's fees.

12. NYC Cooperative Dialogue Law || Effective: October 15, 2018

An employer is obligated to engage in a "cooperative dialogue" within a reasonable time with an employee who requests an accommodation with respect to (i) domestic violence, sex offenses or stalking; (ii) pregnancy, child birth or related medical conditions; (iii) religious needs; or (iv) disability. Upon conclusion of the cooperative dialogue, the employer must provide the employee requesting the accommodation with a written final determination stating why the employer granted or denied the accommodation. Examples of reasonable accommodations include, but are not limited to, flexible scheduling, voluntary substitutes or shift changes, and exceptions to uniform requirements or dress code.

What if you fail to comply? Employers who violate the Cooperative Dialogue Law may be held liable for lost wages and other damages to the employees affected and may be subject to civil penalties of up to $125,000. A willful violation may be subject to a civil penalty of up to $250,000.

13. NYS Wage Theft Prevention Act (WTPA) || Effective: April 9, 2011

All employers, regardless of the number of employees employed, are prohibited from retaliating or discriminating against employees engaged in protected activities including, but not limited to a) making a complaint to the employer or other legal authorities based on the employee's belief that the employer has violated the Labor Law, b) instituting a proceeding under or related to the Labor Law or c) otherwise exercising the employee's rights under the Labor Law.

Moreover, employers are required to provide employees with a written notice at the time of hiring and firing, maintain payroll records and provide wage statements (i.e. pay stubs).

  • Written Notice: at the time of hiring, an employer must provide a new employee with a written notice that sets forth: the rate and basis of pay, any allowances, the regular pay day, and the name, address and telephone number of the employer. The employee must sign a written acknowledgment of the receipt of the notice in English and in their primary language, which the employer must maintain.
  • Payroll records: employers must maintain ongoing records detailing an employee's hours worked, rate of pay, how the employee is paid (hourly, weekly, commission etc.), gross and net wages, itemized deductions, allowances and credits, if any.
  • Wage statements: employers must provide employees with a wage statement that lists all of the above payroll data, each payday.
  • Notice of termination: an employer must provide an employee with a written notice of the exact date of termination, as well as the exact date of cancellation of employee benefits, issued less than 5 days after the date of termination.

What if you fail to comply? Employers who fail to provide employees a written notice at the time of hiring and/or accurate wage statements, may be fined up to $5,000 per employee per violation. Employers who violate the Labor law by discriminating against employees engaged in protected activities are subject to injunctive and equitable relief, liquidated damages (not more than $20,000), lost compensation, reinstatement or front pay, costs, and attorney's fees.

Footnote

1 This guide is intended to provide an overview of recently enacted laws and should not be construed as legal advice or a complete recitation of all recently enacted New York City or State laws, nor should it be interpreted to be a complete recitation of the laws discussed. Information is current as of December, 2018.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions