New York, N.Y. (February 23, 2022) - In 2021, the New York State Legislature and the New York City Council were customarily active in adopting new laws and amending existing laws touching on labor and employment. Employers in these jurisdictions must continue to stay nimble in adjusting themselves to changes in the law that impact how they operate in a myriad of respects. We summarize the key developments below.
NEW YORK STATE
New York formally legalized recreational marijuana use for adults aged 21 and older, thereby creating a new protected class. Adults are now permitted to consume, possess, purchase, display, obtain, and transport marijuana in limited quantities. In addition, the law also creates a new class of individuals entitled to reasonable accommodations in the workplace. Because medical practitioners are now able to recommend medical marijuana for treatment of any condition, the possible realm of "certified medical marijuana users" has been expanded to include more than just individuals suffering from a "serious medical condition." Employers are prohibited from discriminating against employees based on their off-duty use of marijuana. Employers may, however, prohibit marijuana use during work hours, on company property, and while an employee is using company equipment or property. Employers may take adverse action against employees for on-duty marijuana use when appropriate, such as when an employee is impaired by marijuana while at work.
The Empire State also expanded its Paid Family Leave Law and Paid Sick Leave Law. The former was amended to provide that employees who take leave to care for family members can now do so to care for their siblings. Employees eligible for paid family leave may take up to 12 weeks off from work to care for siblings, which includes biological, adopted, half, and step-siblings, while earning 67% of their pay. Leave may also be taken to care for family members who live outside of the state or country and suffer from serious health conditions.
The Paid Sick Leave Law was revised specifically to deal with pandemic-related issues. Employers must now provide four hours of paid leave time for all private and public sector employees after each COVID-19 injection, in addition to four hours for each employee's child's injection. The Paid Sick Leave Law also covers paid leave for employees to care for their children who are experiencing temporary COVID-19 vaccination side effects.
The New York State Labor Law was amended to facilitate employee claims for unpaid and owed wages. The "No Wage Theft Loophole Act" eliminates a loophole regarding the application of the Labor Law's prohibition against improper deductions when an employer withholds an employee's pay in full. Employees may now bring private lawsuits against their employers under the Labor Law when either a portion of their pay or full pay is withheld.
New York enacted the novel HERO Act. Precipitated by the COVID-19 pandemic, the law aims to ensure that employers have a plan in place in case of airborne infectious disease. Employers are required either to adopt the applicable standards established by the State Department of Labor or to establish an alternative equivalent airborne infectious disease exposure plan. Employers are obligated to post their plan in the workplace and provide it to all employees either in writing or in the employee handbook. Employers with 10 or more employees must also permit the formation of a joint-management labor workplace safety committee (if one is not already in place), consisting of at least two-thirds non-managerial employees. Committees are allowed to raise issues regarding workplace occupational safety and health associated with policies put into place by the HERO Act.
Finally, New York State increased certain counties' salary thresholds for classifying executive and administrative employees as exempt. Now, the thresholds for individuals working in Nassau, Suffolk, and Westchester Counties mirror New York City at $58,500 annual wages, and the classification threshold for the rest of the state is $51,480.
NEW YORK CITY
Ban the Box
New York City expanded the scope of its Fair Chance Act (FCA), or "ban-the-box" law, to increase protection for both applicants and employees with criminal backgrounds, including convictions, charges, and arrests. The FCA originally protected job applicants only, but it now extends to provide protections for current employees as well as interns, freelancers, and independent contractors. The law was also broadened with respect to what is considered "criminal history," which now includes pending arrests and other criminal accusations. Employers are therefore prohibited from inquiring or taking adverse employment actions against an applicant or an employee for these bases as well as for violations, non-criminal offenses, non-pending arrests, or adjournments in contemplation of dismissal, youthful offender adjudications, or sealed offenses, if disclosure of such matters would violate the New York City Human Rights Law.
This ordinance prohibits employers from inquiring about or considering information about an individual's conviction history or pending cases until after a conditional offer of employment is made. After the employer extends a conditional employment offer, that offer can only be withdrawn in limited circumstances after following a stringent process. New FCA regulations have been adopted, which set forth the seven factors that employers must consider when considering taking an adverse action against an applicant or employee based on arrest and conviction history. These factors are:
- New York City's policy to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment;
- The specific duties and responsibilities necessarily related to the employment held by the person;
- The bearing, if any, of the criminal offense for which the applicant or employee was convicted, or that is alleged in the case of pending arrests or criminal accusations, on the applicant or employee's fitness or ability to perform one or more such duties or responsibilities;
- Whether the person was 25 years old or younger at the time the criminal offense at issue occurred;
- The seriousness of the offense;
- The legitimate interest of the public agency or private employer in protecting property and the safety and welfare of specific individuals or the general public; and
- Any additional information produced by the applicant or employee, or produced on their behalf, as to their rehabilitation or good conduct, including a history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.
After considering such factors, an employer may only rescind a conditional job offer after determining that there is either (a) a direct relationship between the alleged wrongdoing that is the subject of the pending arrest or criminal accusation and the employment sought or held, or (b) granting or continuing employment would involve an unreasonable risk to property or to the safety or welfare of individuals or the general public. Further, before the employer can withdraw a conditional offer of employment based on an applicant or current employee's criminal history, the employer must provide a notice and written analysis applying the factors stated above and stating the basis for its decision. Employers must also allow the applicant or employee a reasonable time to respond before making any adverse decision.
In the COVID-19 realm, a vaccine mandate was enacted for all private employers in New York City. Private sector employers are required to obtain and confidentially maintain their employees' vaccination information. Employees who do not provide proof of vaccination are prohibited from entering the workplace (defined as any location where individuals work in the presence of others). Employers can continue to employ unvaccinated individuals if they are able to work from home. If an employee can only provide proof of one vaccine injection, and if more than one is required, the employee must provide proof of the second vaccination dose within 45 days of the first. This mandate applies unless the employee falls within a medical or religious exemption.
New York City also expanded its Paid Leave Law to provide additional paid leave for employees and legal guardians with minor children (and adult children with mental or physical disabilities) to get COVID-19 vaccinations.
Under a 2021 New York City Executive Order, organizations that contract with city agencies for the provision of human services are subject to added sexual harassment reporting requirements. Human services providers under the law includes day care, foster care, home care, homeless assistance, housing and shelter assistance, preventive services, youth services, and senior centers, health or medical services including those provided by health maintenance organizations, legal services, employment assistance services, vocational and educational programs, and recreation programs. If the New York City Department of Investigation pursues an investigation, covered entities are required to make available their sexual harassment policies and complaint procedures, any employee, client, or other individual's complaints or allegations of sexual harassment or retaliation by the CEO or equivalent principal (including the final determination or judgment of said complaint), and other information as requested.
Finally, in the employment and data privacy arena, businesses in New York City are now subject to restrictions on the sale of, leasing of, or profiting from biometric information about customers and employees. Businesses must post notices to customers and employees if they will be collecting such information, which consists of characteristics such as retina scans and fingerprints. The law provides a 30-day notice and cure period for violations of the signage requirement. However, an individual may pursue a private lawsuit without giving any such notice if the entity has sold or shared the biometric information.
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.