2022 New York Labor & Employment Law Year End Review

New York, N.Y. (December 22, 2022) - As seems to be the case every year, 2022 was a busy year in the employment law arena for New York State and City. Below, we recap the key new developments that employers should be mindful of in order to move forward with a compliant 2023.

1. Wage Transparency Laws and Wage Updates

This year ushered in a new era of wage transparency laws. Employers with at least four employees, with at least one employee working in New York City, must now disclose good faith minimum and maximum salary ranges in advertisements for jobs, promotions, or job transfers. Disclosures for positions with wages based solely on commissions should include a statement that compensation will be based on commission. What constitutes a “good faith range” is not yet clear, but employers should continue their compliance efforts until clarification is issued by the New York City Commission on Human Rights. Employers have 30 days from receipt of the Commission’s first notice of a violation to remedy their postings. Any subsequent violations may subject employers to a $250,000 fine per violation. Note that New York State enacted similar legislation this year, which has not yet been signed into law by Governor Hochul; that may happen in the new year.

Also in the wage arena, 2022 legislation raised minimum wages and salary thresholds in New York State and areas surrounding NYC. Employers with employees in Westchester and Long Island must now provide the new minimum wage of $15/hour, with the remainder of New York State increasing to $14.20/hour. The minimum wage in NYC remains at $15/hour. Minimum salary thresholds for exempt employees working outside of NYC, Westchester, and Long Island increase from $990/week to $1064.25/week. The new minimum wages and salary thresholds take effect December 31, 2022 (notably the day before the New Year).

2. New York State Human Rights Law Updates

Turning to the State Human Rights Law, a new amendment, which became effective March 16, 2022, expands “retaliation” to prohibit an employer’s release or disclosure of an employee’s personnel file in response to any protected activity by that employee. Protected activities include conduct taken in response to practices forbidden under the Human Rights Law, such as filing a complaint, or testifying or assisting in a legal proceeding.

Another amendment to the Human Rights Law established a statewide toll-free confidential hotline for individuals who experience workplace sexual harassment. Attorneys on the hotline, which is currently operational, will now provide pro bono assistance and counseling to individuals who call in. Employers are now also required to include information about the hotline in employee notices about their rights under the Human Rights Law.

Three other amendments took effect this year under the Human Rights Law. First, the Attorney General was given the authority to sue employers for retaliation, regardless of whether the employer has previously settled with the employee who alleged the retaliation. Second, domestic workers are now covered by the Human Rights Law’s prohibitions against discrimination. Note, however, that “domestic workers” does not include those employed by their own parents, spouse, or child. Finally, state and local entities were officially deemed to be the employer of any executive, legislative, or judicial branch employees, including judges.

3. Other State Law Updates

New York employment laws also changed significantly outside of wage-related and Human Rights Laws. New York employers must now provide notice to employees before monitoring their electronic devices and systems, and employers must obtain express, written acknowledgements from employees who permit such monitoring. Each employer must also post a notice of electronic monitoring in a conspicuous place.

New York’s Paid Family Leave Law (PFL) was also amended to remove the 60-day cap on intermittent Paid Family Leave. The maximum number of leave days is based on the average number of days an employee works per week. Employees who work an average of more than five days per week will be allowed additional leave in excess of the previous 60 day cap. For example, employees who work an average of six days per week would be allowed 72 days of intermittent PFL. The maximum weekly benefit has also been increased to $1,068.36 from the former amount of $971.61. The PFL was also amended to include biological siblings, adopted siblings, step-siblings, and half-siblings under the definition of “family member.” As a result, employees may now take Paid Family Leave to care for their siblings as well the other family members previously designated under the law. This amendment goes into effect on January 1, 2023.

The Nursing Mothers in the Workplace Act was also amended to include clarity regarding lactation rooms, which employers must provide in the workplace, and additional written policy requirements. The expanded accommodations now require New York employers to provide employees with a private, well-lit pumping space that is in close proximity to the work area, shielded from view, accessible to running water, and free from intrusion by others. The designated space cannot be a toilet stall or restroom, and access to workplace refrigeration must be provided for storage of breast milk. Employers must also provide to employees written notice regarding their rights when breastfeeding in the workplace (1) upon hire, (2) annually, and (3) upon return from childbirth.

Lastly, the New York State Secure Choice Savings Program was enacted. Many employers are required to automatically enroll their employees and deposit after-tax employee contributions into a Roth IRA. The program applies to any employer in the state who (i) had at least 10 employees in the state at all times during the prior calendar year; (ii) has been operating for at least two years; and (iii) has not offered a qualified retirement plan to its employees in the prior two years. Once the State rolls out the program, employers will have nine months to comply. It is anticipated that this will happen on or before December 31, 2022.

4. NY Labor Law Updates

New York Labor Law has seen a few changes this year, with new protections for whistleblower actions and legally protected absences, expansions of current leave laws, and newly determined limits on kickback claims and notice requirements in employee handbooks.

First, New York State has expanded potential liability for employer retaliation against whistleblowers under Labor Law Section 740. Most notably, employees are only required to have a “reasonable belief” that conduct is in violation of any law or presents a “substantial and specific danger” to the public health or safety, and they need only make a “good faith effort” to notify their employers. Under certain circumstances, however, an employee is protected if he or she makes a disclosure directly to a public body and does not notify the employer when there is: (1) imminent or serious danger to the public health or safety; (2) risk to endangering the welfare of a minor; (3) reasonable belief that reporting to the supervisor would result in destruction or concealment of evidence; (4) reasonable belief that internal reporting will result in physical harm to the employee or other individuals; or (5) reasonable belief that the supervisor is already aware of the offending activity, policy, or practice and will not correct the issue. The definition of retaliatory action now includes employer conduct that would “adversely impact a former employee’s current or future employment,” including reporting the immigration status of employees or their family members to others. The statute of limitations has also been expanded from one year to two years and employees are afforded a private right of action. Employers must post a notice of these protections in a conspicuous manner in the workplace.

Another new law, which takes effect February 20, 2023, prohibits the use of attendance policies that penalize, discriminate, or retaliate against an employee for taking any legally protected absence. This includes prohibitions on the use of points or demerits in relation to any legally protected absence that could subject an employee to disciplinary action. Examples of protected absences include those taken under the FMLA, the New York Paid Family Leave Law, and the New York State Sick Leave Law.

Finally, Section 201 of New York’s Labor Law has been amended to require that employers make all mandatory workplace postings available to employees electronically, via their website or by email, in addition to any distribution of hard copies or postings in the workplace. This includes all documents that are required to be posted pursuant to state and federal laws and regulations. Employers must additionally provide notice to their employees of the electronic postings; presumably, if the posting is done by email, that would constitute the notice.

5. Notable Court Rulings

The New York Court of Appeals (the State’s highest court) decided earlier this year that no private right of action exists under New York Labor Law Section 198-b, which addresses kickback claims. In a significant victory for employers, the court held that no private right exists because the statute gives only the government, and not individual plaintiffs, a right of recovery.

Finally, the Northern District of New York permanently enjoined the requirement that employers provide notice in their employee handbook that the workplace shall be free from discrimination based on reproductive health decisions. Employers may still include this notice, but it is no longer mandated. Discrimination based on reproductive health decisions remains prohibited. An appeal has been filed.

6. NYC Automated Employment Decision Tools

In 2022, New York City enacted the Automated Employment Decision Tools Law, which now takes effect April 15, 2023. Applicable to “any computational process” used to “substantially assist or replace discretionary decision making for making employment decisions that impact natural persons,” the AEDT Law limits NYC employers’ abilities to use such candidate and employee evaluation tools for hiring and promotion decisions, and requires NYC employers to conduct independent bias audits of such tools used to evaluate job candidates or employees. Under the new law, employers will need to make summaries of their bias audit findings publicly available, including information about the type of data collected, the source of the data, and the data retention policy. Employers will also need to provide advanced notice to both candidates and employees about the use of automated employment decision tools, including the qualifications and characteristics assessed by the tool. Finally, employers will need to advise candidates and employees that they may request an accommodation to opt out of the use of automated employment decision tools and provide them with information for requesting an alternate process.

7. COVID-19 Update

In alignment with nationwide trends, COVID-19-related laws were also amended. Moving forward, vaccination against COVID-19 is no longer mandated for employees of private businesses in New York City, and employer inquiries into the vaccination status of employees and applicants are no longer required.

Turning to statewide COVID-19 legislation, the virus is no longer designated as an “airborne infectious disease that prevents a serious risk of harm to the public health” under the HERO Act. Although employers remain required to maintain and provide to employees a general HERO Act safety plan, employers no longer need to enforce such plans with regard to COVID-19. As such, safety-related protocols for combatting COVID-19, such as daily health screenings, are no longer required. Employers should continue to update their infectious disease exposure prevention plans as needed and post them in the workplace, but they can dispense with implementation for COVID-19 purposes.

Last but not least, the March 2021 amendment to the New York Labor Law that temporarily required New York employers to provide up to four hours of paid leave for employees to receive a COVID-19 vaccine has been extended and remains in effect through December 31, 2023.

For more information on these updates, contact the authors of this alert. Visit our Labor & Employment Practice page for additional alerts in this area.

Authors:

Peter T. Shapiro, Partner

Colby Berman, Associate

Abaigeal Franson, Law Clerk

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