New York State Adopts New Employment Laws

New York, N.Y. (October 12, 2023) – As summer 2023 came to a close, New York continued to find creative ways to keep employers on their toes. Governor Kathy Hochul signed several new employment bills, some of which have already taken effect.

We discuss below some salient information that employers need to know about these recent developments. Notably, Governor Hochul has not yet acted on the eagerly awaited/dreaded bill passed by the legislature several months ago that restricts the use of non-compete agreements in the employment context, which has been on her desk for several months. It is as yet unknown when or whether she will sign that controversial bill.

Banning Captive Audience Meetings

On September 6, 2023, Governor Hochul signed what is being referred to as the Captive Audience Law, which took effect upon signing.

This amendment to the New York Labor Law forbids employers from disciplining an employee who refuses to attend or participate in a meeting held by employers during work hours, otherwise known as a captive audience meeting, where the meeting agenda seeks to communicate the employer’s opinion concerning religious or political matters including labor organizing.

Importantly, discipline is defined to include refusing to hire, employ, or license applicants for refusing to participate in a captive audience meeting. Work hours are defined to include “all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work.”

The new Section 201-d also provides a definition for the “political matters” that are covered. Such matters are “matters relating to elections for political office, political parties, legislation, regulation” and the decision whether to support or join a labor organization. “Religious matters” are “matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.”

Notably, Section 201-d does not protect managers or supervisors. Accordingly, employers can require managers and supervisors to attend captive audience meetings and employers may discipline those who fail to attend.

Employers are required to post a workplace notice advising employees of their rights under Section 201-d. Typically, the New York State Department of Labor (DOL) disseminates form notices and it is anticipated that it will do so for this newly mandated notice.

Under Section 201-d(7), individuals asserting claims under the statute may bring an action in court seeking equitable relief and damages. Additionally, employers found in violation of this provision may be subject to a civil penalty of $300 for the initial violation and $500 for each subsequent violation to be assessed by the Attorney General.

New York is the fourth state to prohibit mandatory captive meetings. There is active litigation in Connecticut concerning the constitutionality of a similar law. It would not be surprising if a similar challenge is mounted in the Empire State.

Employers Cannot Request Personal Account Information To Access Personal Accounts

Effective March 12, 2024, New York will be aligned with 26 other states by restricting employers from requiring employees or applicants to provide username, password, or any other means to access their personal accounts, such as social media accounts. The newly adopted New York Labor Law Section 201-i defines “personal accounts” as “an account or profile on an electronic medium where users may create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages, or internet website profiles or locations that is used by an employee or applicant exclusively for personal purposes.”

Pursuant to Section 201-i, it is “unlawful for any employer to request, require or coerce any employee or applicant for employment to:

Disclose any user name and password, password, or other authentication information for accessing a personal account through an electronic communications device;
Access the employee’s or applicant’s personal account in the presence of the employer; or
Reproduce in any manner photographs, videos, or other information contained within a personal account obtained by prohibited means.”

Employers will be restricted from taking any adverse employment action against current employees, such as termination or discipline, or otherwise penalizing or threatening to discharge or discipline for not providing information to their personal accounts. Similarly, employers cannot refuse to hire an applicant who refuses to disclose their personal accounts.

However, it will not be not unlawful for an employer to access personal accounts where an employee or applicant voluntarily adds the employer, agent of the employer, or employment agency to their contact list. For example, if an employee adds their manager on Instagram it is not unlawful for the employer to access information on that account. Moreover, the statute does not restrict employers from viewing information that is publicly accessible. The statute also does not restrict employers from requiring employees or applicants to disclose usernames and passwords for accessing nonpersonal accounts.

The statute further explains that it should not be construed to restrict employers from the following:

Requesting or requiring an employee to disclose access information to an account provided by an employer where such account is used for business purposes and the employee was provided prior notice of the employer’s right to request or require such access information;
Requesting or requiring an employee to disclose access information to an account known to an employer to be used for business purposes;
Accessing an electronic communications device paid for in whole or in part by the employer where the provision of or payment for such electronic communications device was conditioned on the employer’s right to access such device and the employee was provided prior notice of and explicitly agreed to such conditions, provided that the employer does not access any personal accounts on such device;
Complying with a court order in obtaining or providing information from, or access to, an employee’s accounts; and
Restricting or prohibiting an employee’s access to certain websites while using an employer’s network or while using a device paid for in whole or part by the employer where the provision of or payment for the device was conditioned on the employer’s right to restrict such access and the employee was provided prior notice of and explicitly agreed to such conditions.

Wage Theft May Be Prosecuted as Criminal Larceny

Effective September 6, 2023, wage theft is designated as criminal larceny under Section 155 of the New York Penal Law. The amendment provides that: “a person obtains property by wage theft when he or she hires a person to perform services and the person performs such services” but is not paid for the services performed. Employers can be charged with larceny if they fail to pay wages at the minimum wage rate and overtime rate, or the promised wage rate (if greater).

Significantly, it is permissible for the prosecutor to aggregate all nonpayments or underpayments into one larceny count, even if the nonpayments or underpayments occurred in multiple counties.

Criminal prosecutions of employers for wage violations have not been frequent, and it remains to be seen whether they will increase now that this sharper arrow has been added to the prosecutorial quiver.

Restrictions on Employers’ Rights as to Employee Inventions

Effective immediately, the New York Labor Law includes a new section, 203-f, which protects employees by voiding any provision in an employment agreement or contract that provides that an employee shall assign, or offer to assign, any of their rights in an invention that the employee developed entirely on their own. This means that inventions created by the employee themselves and outside the context of their employment shall remain with the employee. This law applies retroactively to existing employment agreements or contracts which requires employees to assign their rights to their employer.

Notably, the law does not apply if the employee used business time, used the employer’s equipment, or used the employer’s supplies, facilities, or trade secrets to create the invention. Moreover, this provision does not apply to inventions that: (1) “relate . . . to the employer’s business, or actual or demonstrably anticipated research or development of the employer” or (2) derives from any work done by the employee on behalf of the employer.

It is anticipated that future disputes in which employees claim rights to their inventions will turn on how closely the invention relates to the work the employees were to perform as part of their duties.

Gender Identity or Expression Protections For Interns

Effective August 23, 2023, interns have been added to the categories of persons protected against discrimination on the basis of “gender identity or expression” under the New York State Human Rights Law. Employers should review their policies and handbooks to ensure that interns are referenced.

Expanded Notice of Eligibility for Unemployment Benefits

As of November 13, 2023, employers will be required to inform all employees of their right to file for unemployment benefits upon reduction in hours, temporary separation, or any other interruption of continued employment that results in total or partial unemployment. This expands the current provisions of the Labor Law, which require employers to inform all employees of their right to unemployment benefits upon a permanent or indefinite separation. Employers will be required to provide eligible employees notice in writing on a form furnished and approved by the DOL, which must include the employer’s name, registration number, and the address to which requests for remuneration and employment information should be directed.

Lewis Brisbois’ New York Labor & Employment team is available to assist with compliance issues arising under these and all existing laws and regulations.

Authors:

Peter T. Shapiro, Partner

William Gosling, Associate