United States: 2018 New York Labor & Employment End Of Year Review

From Paid Family Leave to new training and policy requirements stemming from the #MeToo movement, both New York City and New York State continued expanding employee protections and public benefits in 2018. All employers doing business in New York State should take note of the new laws that were passed or went into effect 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 with these changes, as well as the myriad of other employment laws and regulations facing employers.

#MeToo for New York State and New York City Employers

With sexual harassment claims drawing increased attention and employers facing increased scrutiny, New York State and New York City each passed significant new protections for victims of sexual harassment. Under the new state regulations:

  • By October 9, 2019, employers must complete the first cycle of mandatory annual harassment prevention training;
  • Employers must adopt written policies that meet or exceed the model policy and training program developed by the New York State Department of Labor;
  • Employers are liable for gender-based harassment experienced by non-employees, such as contractors, vendors, or consultants;
  • Non-disclosure agreements and confidentiality provisions are barred in private settlements that encompass sexual harassment claims unless specifically requested by the plaintiff;
  • Mandatory arbitration for sexual harassment claims is prohibited (except where inconsistent with federal law).

New York City adopted additional regulations for its employers. The "Stop Sexual Harassment in NYC Act" includes the following provisions, which are applicable to New York City employers only:

  • All employers must display a new anti-sexual harassment poster created by the New York City Commission on Human Rights in both English and Spanish in a conspicuous location;
  • As of April 1, 2019, employers with 15 or more employees must conduct annual sexual harassment training for all employees. The training must include "interactive" training on the definition of sexual harassment, as well as advice on the process to report complaints internally and externally.

Additional Changes Affecting All New York State Employers

Minimum Wage

The minimum wage for employees continues its incremental rise to $15.00 per hour across the state by 2021. This year, on December 31, 2018, the following rates are in effect in the various geographic regions:

  • New York City Employers (11 employees or more) - $15.00 per hour
  • New York City Employers (10 employees or less) - $13.50 per hour
  • New York City Fast Food Employers - $15.00 per hour
  • New York State Fast Food Employers - $12.75 per hour
  • Long Island & Westchester Employers - $12.00 per hour
  • Employers in the Other Regions of New York - $11.10 per hour

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

Paid Family Leave

On January 1, 2018, New York State's new Paid Family Leave Law (PFL) went into effect, and benefits continue to increase in 2019. This law, which New York touts as the nation's strongest and most comprehensive paid family leave policy, requires most New York employers to provide employees with paid leave, the cost of which is covered through employer-funded insurance coverage 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 defined in the federal Family and Medical Leave Act).

PFL does not apply to an employee's own health condition. Employers that currently receive New York State Disability Benefits coverage through a private carrier must obtain PFL coverage through the same carrier. Employers that 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.

Beginning on January 1, 2019, eligible employees are entitled to a total of ten weeks of paid family leave during any given 52-week period, a two-week increase from 2018's benefits.

During the 2019 calendar year, an employee is entitled to a maximum of 55% of his or her average weekly wage, maxing out at $746.41. These numbers are scheduled to continue escalating until 2021.

Additional Changes for New York City Employers

Temporary Schedule Change

Effective July 18, 2018, New York City's Temporary Schedule Change Law requires private employers to provide employees with temporary changes to their work schedules based on certain "personal events." A "temporary change" includes, but is not limited to:

  • Using short-term unpaid leave;
  • Using paid time off;
  • Working remotely; or,
  • Swapping or shifting work hours.

A "personal event" includes, but is not limited to:

  • The need to care for a child under 18;
  • The need to care for a "care recipient," such as a family or household member with a disability who relies on the employee for medical care or their daily needs;
  • The need to attend a legal proceeding for a hearing for public benefits to which the employee, a family member, or the employee's minor child or care recipient is a party; or,
  • Any other reason covered by the Earned Safe and Sick Time Act

Employers must grant requests for up to two separate occasions, each totaling one business day, or one occasion for up to two business days, per calendar year. If the employee places the request in writing, the employer is required to provide a written response detailing the reasoning underlying the decision to grant or deny the request, within 14 days.

Additional considerations are discussed in our client alert from November 28.

Cooperative Dialogue

As of October 15, 2018, employers (and providers of public or housing accommodations) are now required to engage in "cooperative dialogue" with individuals who may be entitled to reasonable accommodations related to his or her religious beliefs, disability, pregnancy, childbirth or related condition, or because the employee was a victim of domestic violence, sexual violence or stalking. 

Although it has long been an employer best practice to engage in an interactive process when an employee requests an accommodation, the new law now mandates that employers engage in this dialogue in a specific fashion in order to protect themselves from the sweeping liability imposed by the New York City Human Rights Law.

This is very significant because it imposes specific requirements for an interactive dialogue as to accommodation issues other than disability (for which the Americans with Disabilities Act has long required an interactive dialogue).

As a result of this new law, employers are specifically required to engage in a good faith written or oral conversation with the employee regarding his or her accommodation needs, potential accommodations (including alternatives to a requested accommodation), and the difficulties that such potential accommodations may pose. The employer can only determine that no reasonable accommodation would allow the employee to satisfy the essential requisites of the job after the parties have engaged or attempted to engage in a cooperative dialogue.

Once the cooperative dialogue is concluded, employers must provide the employee with a written determination that identifies whether an accommodation is being granted or denied and states the reasons for the decision. Thus, informal verbal communications will no longer be sufficient to fulfill the duty to engage in the interactive process required to determine whether a reasonable accommodation can be achieved.

Paid Safe and Sick Time Act

Effective May 5, 2018, the New York City Paid Safe and Sick Time Act expanded 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.

Additional Changes for Westchester County

Earned Sick Leave Law

Now passed and going into effect on March 30, 2019, the Earned Sick Leave Law is comparable to New York City's Paid Safe and Sick Time Act. 

The new law requires employers to provide at least 40 hours of sick leave to employees who work more than 80 hours per year. For employers with five or more employees, this leave must be paid at the employee's regular rate of pay. Leave may be unpaid for employers with fewer than five employees.

Employees accrue one hour of sick time for every 30 hours worked, and unused sick time may be carried over to the following year. Employers are not required to pay out earned but unused sick time at the end of employment.

Wage History Anti-Discrimination Act

Once again, Westchester follows in New York City's footsteps through implementation of the Wage History Anti-Discrimination Act.

The Act bars employers from asking job applicants questions about their salary history or relying on salary history to determine the salary a prospective employee should be offered.

Additional details and considerations of these Westchester laws can be found in our client alert from November 6.

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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