The beginning of the new year is a good time to review your policies and practices to make sure they are up-to-date with the laws referenced in this Alert.
In 2022, New York state and New York City continued to enact critical labor and employment laws that directly affect businesses of all shapes and sizes. Employers should familiarize themselves with these new laws and update their policies to stay compliant.
Pay Transparency in Job Advertisements
New York City's pay transparency law (summarized in a prior Alert), which amended the New York City Human Rights Law, went into effect on November 1, 2022, and requires employers with four or more employees (at least one of whom works in New York City) to disclose the minimum and maximum annual salary or hourly wage the employer believes, in good faith, it is willing to pay for the advertised job, promotion or transfer opportunity. Covered employers must follow the law when advertising for all positions, except for positions that cannot or will not be performed, at least in part, in New York City (whether from an office, in the field or remotely from the employee's home). The good faith salary range disclosure does not need to include other forms of compensation such as bonuses, tips, health benefits and paid time off. The New York City law provides only current employees (but not job applicants) with a private right of action to bring a lawsuit against an employer for violating the law.
New York state's pay transparency law, effective September 17, 2023, is generally similar to New York City's pay transparency law?with a few key differences. Like the New York City law, the purpose of the state law is to address systemic pay inequity and discrimination by requiring employers to disclose good faith annual salary, hourly wage compensation or compensation ranges. However, unlike the New York City law, the state law is more expansive and provides forms of relief for employer violations to both job applicants and to current employees by allowing an individual in either group to file a complaint with the New York State Department of Labor. The state law amends the New York State Human Rights Law and requires employers with four or more employees to post good faith compensation information to any jobs that can or will be performed, at least in part, in the state of New York. Another prior Alert breaks down the law's potentially wide-ranging reach to employers with no physical presence in New York, but who advertise jobs that may be performed entirely remotely and can be performed, at least in part, in New York state. Unlike the New York City law, the state law also requires employers to include a job description with each job posting (should such a description already exist) and, when a position is paid "solely on commission," the posting must include a general statement that compensation will be based on commission. Employers must also keep a record of the history of compensation ranges for each job, promotion or transfer opportunity. An employer's failure to comply with the statute will result in civil penalties of up to $3,000 for a third (or subsequent) violation, based on the employer's size, good faith, gravity of the violation(s) and history of previous violation(s). There is no private right of action to sue an employer under the law, and the law notes that it does not supersede or preempt any pay transparency provisions of local laws, rules or regulations.
While other New York localities have also enacted pay transparency bills in the recent past, such as Ithaca (effective September 1, 2022), Westchester County (effective November 6, 2022) and Albany County (passed by legislature on October 11, 2022), pay transparency for the vast majority of employers throughout New York state will now be a reality in the very near future.
Enhanced Whistleblower Protections
Effective January 26, 2022, Governor Kathy Hochul significantly expanded the New York Labor Law's whistleblower protections under NYLL § 740 to employees, former employees and independent contractors throughout New York state. One of the key changes is that the law now protects those blowing the whistle on an employer's violation of any law, rule or regulation, rather than just those that present a substantial and specific danger to public health or safety. Also, prior to the amendment, an employee was required to provide proof of an actual violation of a law, rule or regulation to receive whistleblower protection. Now, an employee needs to prove only that they "reasonably believe" the employer's activity, policy or practice is in violation of a law, rule or regulation, or poses a substantial and specific danger to public health or safety.
The amendment also expanded the definition of "retaliatory action" to include (i) an adverse employment action or threats to take such action against an employee in the terms and conditions of employment; (ii) actions or threats to adversely impact a former employee's current or future employment; or (iii) threatening to contact or contacting the United States immigration authorities to report the citizenship or immigration status of an employee or of an employee's family or household member.
Employees also no longer are required to bring the violating activity to the attention of a supervisor or give the employer a reasonable opportunity to correct the alleged violation; under the amendment, employees are required only to make a "good faith effort" to notify the employer of the activity, policy or practice. There are also a number of circumstances under which employer notification will not be required, as detailed in our prior Alert.
Employers are required to post a notice of employee protections and rights under the law in a conspicuous and easily accessible location frequented by employees and applicants for employment.
Employers should consider having a complaint procedure by which employees can raise concerns about legal, ethical or safety violations. This will help bring potential legal violations to an employer's attention. The failure of an employee to use the complaint procedure may be a defense in some circumstances where a user-friendly policy and complaint procedure exists.
Retaliation via Publication of Employee Personnel Files Is Unlawful Under the New York State Human Rights Law
Effective March 16, 2022, Senate Bill S5870 amended the New York State Human Rights Law (NYSHRL) to prohibit employers from releasing employee personnel records as a retaliatory action against an employee because the employee has either (1) opposed any practices forbidden under the NYSHRL or (2) filed a complaint, testified, or assisted in any proceeding under the NYSHRL or any other judicial or administrative proceeding. The law's justification references "recent events" in which employers leaked employee personnel files with the intent to disparage or discredit a victim or witness of discrimination in the workplace. The law does explicitly allow employers to release employee personnel files where such disclosure is made in the course or commencing or responding to a complaint, civil or criminal action, or judicial or administrative proceeding.
The new law is consistent with the broad prohibition against retaliatory conduct under federal and state law. Supervisors should be trained on the broad scope of the prohibition, including its application to former employees.
New York State Division of Human Rights' Anti-Sexual Harassment Hotline Is Live
Since July 19, 2022, the division has operated a statewide, confidential, toll-free hotline for New York employees to voice complaints of workplace sexual harassment. The hotline phone number (1-800-427-2773) provides callers with information about how to file sexual harassment complaints with the division and, if interested, will provide them with the contact information of a pro bono attorney for further assistance.
The new law requires employers to update their policies or other communications with employees to include the hotline number. There are posting requirements, too.
Required Notice of Electronic Monitoring
Effective May 7, 2022, New York's digital workplace monitoring law amends the state civil rights law to require prior written notice upon hiring to all employees, informing them of the types of electronic monitoring that the employer may use. The law covers employer monitoring of "any electronic device or system," which includes computer, telephone, internet and email systems. Employers must specifically advise employees that:
Any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photo-electronic, or photo-optical systems may be subject to monitoring at any and all times and by any and all lawful means.
The law covers all employers (regardless of size) with a "place of business within New York State," but does not address coverage of wholly remote employers operating within the state or whether remote workers living outside the state are covered.
Employers must obtain each employee's acknowledgment of the notice and also post a similar notice in a conspicuous location. Employers who are found to violate the law are subject to civil penalties, with a first offense resulting in up to a $500 penalty; second offense up to $1,000; and third and each subsequent offense up to $3,000.
While employers should already be complying with this law, if they are not, they must immediately update their onboarding policies and procedures to ensure all new hires receive the required notice and sign an acknowledgement of the same, post the notice conspicuously in the workplace, and review and update their employee handbooks to ensure existing monitoring policies reflect the law's notice requirements. While the law explicitly applies to newly hired employees, it also requires employers to provide the notice annually to its existing employees. Prudent New York employers should also consider furnishing the notice to remote employees, as well as independent contractors and interns.
Prohibition of No-Fault Attendance Policies
Effective February 19, 2023, Senate Bill S1958A amends the NYLL to prohibit absence control policies (aka "no-fault" attendance policies, which treat all absences the same) that discipline employees for taking absences that are protected under federal, state or local laws. Under the law, employers may not assess any demerit, occurrence, any other point or deductions from an allotted time bank that subjects or could subject an employee to disciplinary actions based on lawful absences. Such disciplinary actions include, but are not limited to, failure to receive a promotion or loss of pay. Employers will soon be subject to retaliation claims should they engage in such a practice. The state seeks to make it explicitly clear that workers shall not be punished or subject to discipline for lawful absences.
Even without the new law, no-fault attendance policies are high risk. For example, an employer may put itself at risk of a claim when it considers absences under the Family and Medical Leave Act and Americans with Disabilities Act for certain purposes. Indeed, the Equal Employment Opportunity Commission has identified no-fault attendance policies as one of the employment practices that may result in systemic discrimination when such a policy fails to provide reasonable accommodations for people with disabilities, such as making an exception to an attendance plan when an absence is caused by a person's disability. Although beyond the scope of this Alert, it is important to note there are a number of steps employers can take to mitigate (not eliminate) the risks of no-fault policies.
New York City's Automated Employment Decision Tools Law
New York City Local Law 144 of 2021 was enacted on December 11, 2021, and requires that New York City employers take a number of affirmative steps before using artificial intelligence in their employment decision-making processes (including hiring and promotion decisions). Although effective January 1, 2023, in light of the high volume of public comments and requests for additional guidance, the law will not be enforced until April 15, 2023. While the New York City Department of Consumer and Worker Protection released proposed rules for implementing the law in December 2022, the final rules are yet to be published and a second public hearing is planned for January 23, 2023. Once enforcement takes effect, employers in New York City will be required to conduct an independent bias audit of any automated employment decision tool (AEDT) before the AEDT is used. The bill also requires that candidates or employees that reside in New York City are notified about (i) the use of such tools in the assessment or evaluation for hire or promotion and (ii) the job qualifications and characteristics that will be used by the AEDTs. Violations (including each AEDT use violation and each AEDT notice violation) will be subject to a civil penalty of up to $500 for a first violation and each additional violation occurring on the same day as the first violation, and not less than $500 nor more than $1,500 for each subsequent violation. We will offer an in-depth summary of what will soon be a critical legal requirement for all New York City employers in a forthcoming Alert.
Additional Legal Updates for New York Employers
Effective December 16, 2022, Section 201 of the NYLL now requires employers to provide electronic versions of all documents that are required to be physically posted at a worksite pursuant to state or federal law or regulation. Digital versions must be made available through the employer's website or by email, and employers must provide employees with notice that documents required for physical posting are also available electronically.
Citizenship and Immigration Status Discrimination
Effective December 23, 2022, employers are prohibited from discriminating on the basis of "citizenship or immigration status" under the NYSHRL. The law defines "citizenship or immigration status" as "citizenship of any person or the immigration status of any person who is not a citizen of the United States." The law states that it does not preclude verification of citizenship or immigration status where required by law, nor is an adverse action based on verification of citizenship or immigration status prohibited where such action is required by law.
New York state extended required COVID-19 paid vaccination leave through December 31, 2023. Employers must continue to provide employees with "a sufficient period of time, not to exceed four hours" of paid leave per dose (including boosters) of COVID-19 vaccines. The leave must be paid at the employee's regular rate of pay and employers may not charge such time against leave accruals otherwise already available to the employee.
New York City ended its private employer vaccine mandate on November 1, 2022. Private employers may, but are no longer required to, continue to require vaccination for COVID-19 as a condition of employment pursuant to their own policies.
New York City's child vaccine law expired on December 31, 2022. Under the law, employees who are parents of a child under the age of 18 or an older child incapable of self-care because of a disability were entitled to up to four hours of paid COVID-19 child vaccination time per child and per vaccine injection. The leave was to be paid at the employee's regular rate of pay and employers could not charge such time against leave accruals otherwise already available to the employee.
Paid Family Leave Expansion
In 2023, the list of family members for whom eligible workers can take paid family leave to care for will expand to include siblings with a serious health condition. "Siblings" includes biological siblings, adopted siblings, stepsiblings and half-siblings. Employees will contribute 0.455 percent of their gross wages per pay period, with a maximum annual contribution for 2023 of $399.43. Employees taking paid family leave in 2023 will be eligible to receive a maximum weekly benefit of $1,131.08.
Minimum Wage and Salary Exemption Threshold Increases
In 2023, the minimum wage for every part of New York state except New York City, Long Island and Westchester County will increase from $13.20 an hour to $14.20 an hour. The 2023 minimum wage throughout New York City, Long Island and Westchester County will remain unchanged from 2022 at $15.00 an hour.
In 2023, the minimum salary threshold for the executive and administrative exemption for every part of New York state except New York City, Long Island and Westchester County will increase from $990 a week to $1,064.25 a week. The minimum salary threshold for the executive and administrative exemption in New York City, Long Island and Westchester County will remain unchanged from 2022 at $1,125 a week.
What This Means for Employers
The beginning of the new year is a good time to review your policies and practices to make sure they are up-to-date with the laws referenced in this Alert. Expect to hear from us again soon, as we are tracking other bills that are expected to become law in the near term, including bills dealing with no rehire, confidentiality and nondisparagement. Happy New Year!
For More Information
If you have any questions about this Alert or have specific questions and concerns related to your operations, please contact Eve I. Klein, Jonathan A. Segal, Gregory Slotnick, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.