Articles

February 1, 2022

As one can imagine, New York employment laws did not standstill last year during the pandemic.  Today we take a look back at significant changes made in 2021 and a look ahead at what New York employers can expect in 2022 and beyond.

1. State Minimum Wage Increased as of December 31, 2021

Effective as of December 31, 2021, New York’s minimum wages, hospitality tip credits, and minimum salary levels for overtime-exempt employees were  increased.

The minimum wages for workers located in Nassau, Suffolk and Westchester counties, increased from $14.00 to $15.00 per hour. For New York City employees, the minimum hourly rate remains unchanged at $15.00 per hour. The wages for workers in the remainder of New York State increased from $12.50 to $13.20 per hour.

It is important to note, there is an exception for fast-food workers throughout the state, as these wages raised to $15.00 per hour as of July 1, 2021.

Tipped hospitality workers (restaurant or hotel) working outside of New York City will also experience an increase to their minimum wages.

In addition, changes have been made to the salary threshold for employees classified as exempt from overtime requirements under the executive and administrative exceptions.  This change is limited to employees located outside of New York City. For executive and administrative employees based in Nassau, Suffolk and Westchester counties there is an increase from $1,050 to $1,125 per week; for executive and administrative employees located elsewhere (other than New York City) the wage minimum increased from $937.50 to $990 per week. The minimum salary for exempt employees in New York City for employers with 11 or more employees remains at $1,125.00 per week and for employers with 10 or fewer employees, $1,125.00 per week.

2. New York City Vaccine Mandate

As of December 27, 2021, workers in New York City who perform in-person work or interact with the public in the course of business must show proof they have received at least one dose of a COVID-19 vaccine. Workers will then have 45 days to show proof of their second dose (for Pfizer or Moderna vaccines).  The mandate applies to over 180,000 businesses and is not limited by company size.

Businesses may not allow any unvaccinated workers to come to their workplace. A workplace is considered any location where you work in the presence of at least one other person.  Non-employee workers, such as contractors, must also provide proof of vaccination. Businesses may request a contractor’s employer confirm proof of vaccination.  Businesses must keep a log of these requests and the confirmations.

Businesses must complete the Affirmation of Compliance with Workplace Vaccination Requirements certificate.  This certificate affirms the company is in compliance with the City’s mandate.  The certificate must be posted in a public place and readily available for inspection.

While the mandate will permit reasonable accommodations for employees with legitimate religious or medical reasons, it does not allow for a testing option in lieu of being vaccinated.  Businesses should be aware of the process for obtaining exemptions to the mandate.

It is also important for employers to note, the mandate does not apply to employees who work alone at a worksite or who are fully remote.

3. Paid Family Leave Law Expanded

Beginning on January 1, 2023, New York’s Paid Family Leave law (“NYPLL”) will be expanded to include an employee’s biological, adopted, step, and half-sibling(s).  Currently, the NYPFLL provides eligible employees with up to 12 weeks of job protected, paid time off to bond with a newly born, adopted or foster child; care for a family member with a serious health condition; or help with family situations when a spouse, domestic partner, child or parent is deployed on active military service.  Currently, the leave only provides for caring of one’s spouse, domestic partner, child, parent, parent-in-law, grandparent or grandchild with a serious health condition. 

4. Whistleblower Protections Significantly Expanded

Effective January 26, 2022, New York’s amended whistleblower law went into effect.  The amendment significantly expands protections afforded to employees.  Key changes being implemented with the amendments include:

• Expanded definition of who is considered an “employee” to now include former employees and contractors.
• Expanded definition of protected activity, to prohibit retaliation against any employee who “reasonably believed” an action violated the law or poses a substantial and specific danger to the public health or safety. Previously, employees were only protected if they reported an “actual violation” of the law.
• Elimination of the need for an employee to notify the employer of a potential violation where: (1) there is imminent and serious danger to public health and safety; (2) the employee reasonably believes that telling the employer would result in the destruction of evidence or concealment of the activity; (3) notification could reasonably be expected to lead to the endangering of a minor; (4) the employee reasonably believes reporting to the supervisor would result in harm to the employee or other person; and (5) the employee reasonably believes that the supervisor is already aware of the activity, policy or practice and will not correct such activity, policy, or practice.
• Expanded definition of a “retaliatory act” to include “an adverse action taken by an employer or his or her agent to discharge, threaten, penalize, or in any other manner discriminate against any employee or former employee exercising his or her rights under this section.”
• Expanded statute of limitations from one to two years.
• Expanded remedies and damages for employees.
• An employer now needs to post a notice of rights and protections for employees under the law in a conspicuous, accessible and well-lit area.

5. New Limits on Employee Monitoring

Beginning on May 7, 2022, New York private sector employers will need to provide written notice to employees who are subject to electronic monitoring.  This notice must be provided in advance. Employers must post the notice in a conspicuous place that is readily available for viewing.

The notice must be in writing or as an electronic record and acknowledged by the employee.  The employee’s acknowledgment can be in writing or as part of an electronic record.  It must inform employees that the use of any electronic device or system, including a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.   This includes 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.

Employers who are found in violation of this new law will be subject to a civil penalty of up to $500 for the first violation, $1,000 for a second and $3,000 for each violation thereafter.

6. Shared Work Programs may be used to assist Employees Facing Layoff

Towards the end of last year, Governor Hochul signed new legislation permitting employees faced with a layoff to petition their employers to allow the employees to participate in a shared work program in lieu of termination. In order for this to work, the majority of the employees must submit in writing to their employer a request to initiate a shared work program.  This request must be made either before the layoff or within 10 days of the layoff. Upon receipt, the employer has seven (7) days to notify its employees whether it chooses to implement such a program.  It is important to note, the employer is under no obligation to implement the program, and therefore this new program could have little real-world benefit for impacted employees.

7. New COVID-19 Vaccine Paid Leave For New York Employees

A new Senate Bill, S2588, grants time off for public and private employees to receive a COVID-19 vaccination is currently in place and is set to expire on December 22, 2022.

The new law gives employees a paid leave of absence to receive the COVID-19 vaccination.  The paid leave is not to exceed four hours per vaccination, unless otherwise authorized by employer or a collective bargaining agreement. The time off is in addition to any other leave to which the employee is entitled and must be paid at the employee’s regular rate of pay.

Additionally, New York City recently passed a new bill amending its Earned Safe and Sick Time Act which requires all private-sector employers to provide their employees with four hours of paid COVID-19 leave for child vaccinations.  The leave is offered per child and per vaccine injection.  The benefits of this bill are retroactive to November 2, 2021.

8. NY HERO Act Requires Employers to Develop and Implement Airborne Infectious Disease Exposure Prevention Plan

Last year we wrote about the new New York Health and Essential Rights Act (the “NY HERO Act”), which mandates certain health and safety protections for the workplace as a result of the ongoing COVID-19 pandemic. The NY HERO Act requires certain employers to implement an airborne infectious disease exposure prevention plan.  Companies can comply with this mandate either by adopting (i) one of the model plans provided by the State’s Department of Labor or (ii) an independent plan which meets or exceeds state requirements.

To be in compliance with the NY HERO Act, employers must implement their plan whenever the New York State Commission of Health (“NYSCH”) announces such a plan is necessary.  Currently, the COVID-19 pandemic has been designated as such. 

The Act also requires employers with at least 10 employees to permit staff to develop a workplace health and safety committee.  This committee is designed to be composed of both employer and employee representatives.

A copy of your plan must be provided to all new hires, posted in a prominent location at your offices and included in your employee handbook.  Employers who fail to comply with the NY HERO Act could be fined and open to a private right of action by its employees.

9. Artificial Intelligence Recruitment Tools Subject to Limitations in New York City

Just last month, New York City passed new legislation limiting the use of automated employment decision tools (“AEDT”) which will go into effect  January 1, 2023. The new law will restrict employers from using AEDTs to screen candidates for employment and current employees for promotion unless the AEDT has received a bias audit.  To be in compliance, the audit must be no more than one year old and performed by an independent third party.

10. Ban the Box Amended: Two-Step Process for Background Checks

New York City has amended its Fair Chance Act, also known as the “ban the box” law.  The move greatly expands protections for not just applicants, but existing employees as well. The new amendment requires employers to follow a new two-step process when performing background checks on applicants.

Step 1.

Step one takes place before a conditional offer of employment is made, which requires an employer to review an applicant’s non-criminal background information first. This step prevents the individual making the hiring decision from seeing an applicant’s criminal history.  Additionally, the job application and/or job posting should not state a “background check” will be required for the job. In fact, at no point prior to making a conditional job offer should this be stated.

Step 2.

Only after a conditional offer of employment is made can an employer perform a criminal record check.  If, as a result of the criminal background check, the employer chooses to withdraw an offer, it still needs to engage in the Fair Chance Process. As part of this second step, the employer is not permitted to consider any noncriminal information unless it can be shown the employer could not have reasonably known of the new noncriminal information before it made its conditional offer and if it had known of this additional information before making the conditional offer it would not have made the offer.

In addition, the amendments expand protections to cover current employees and independent contractors. For an existing employee, an employer must utilize the revised Fair Chance Process before being permitted to take an adverse action against an employee for a pending case or conviction which takes place while employed. However, employers are not permitted to even ask existing employees/or applicants, let alone take adverse actions against them, for certain types of matters known as “non-convictions.” 

An employer who wishes to terminate an employee or withdraw an offer of employment after utilizing the Fair Chance Process must provide the employee/applicant the revised Fair Chance Notice, as well as provide the individual five business days to reply.

Of final note, the scope of the law now broadens the definition of “criminal history” to include pending arrests and criminal accusations, which provides further protection to the employee/applicant.

11. Salary Listings Now Required in Job Postings

On December 15, 2021, the New York City Council passed legislation requiring the majority of employers advertising job openings to be for performed in New York City to include the minimum and maximum pay offered for the position. That bill became law after new Mayor, Eric Adams, elected not to veto it before a January 14, 2022, deadline.  As a result, the new law will go into effect on May 15, 2022.  

What Employers Should Do Now

New York employers facing this wide array of changes in laws need to ensure compliance for 2022 and prepare for future changes schedule for 2023.  They can do this by (i) reviewing and revising company policies and procedures, employee handbooks to ensure they are up to date; (ii) ensuring compliance with the new minimum wage laws impacting their business; and (iii) beginning to plan for timely compliance with pending laws that have yet to go into effect.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws. The subject matter of this post can be very technical. It is also an evolving area of law and very fact specific. Our goal here is to simply alert you to some of the new laws which may impact your business.  It is not intended to serve as legal advice. We encourage you to seek competent legal counsel before implementing any of the new policies discussed above.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.