This year New York employers have had to scramble to keep up with many new employment laws, and next year promises more of the same. The latest: New York City Mayor Bill de Blasio’s December 6 mandate that private sector employers require COVID-19 vaccines for their workers in NYC. If it survives expected legal challenges and takes effect December 27 (Happy Holidays!), the rule will be the broadest mandate of any state or large city in the US. From minimum wage increases, to regulations on the use of artificial intelligence tools in employee recruitment, to notice requirements for electronic employee monitoring, to New York’s fulsome response to COVID-19 through the HERO Act—private sector employers in New York have a laundry list of changes to implement and prepare for.
Below we highlight the 10 major employment law changes and updates that businesses need to know.
New York City Vaccine Mandate To Hit All Private Employers December 27
By the end of the month, all in-person private sector New York City employees must have at least one dose of a COVID-19 vaccine, according to an announcement by Mayor de Blasio. The mandate, which will take the form of an order issued by the NYC Department of Health and Mental Hygiene, will apply to nearly 184,000 businesses and will not be limited to businesses in certain industries or based on company size. The mandate will most likely parallel the city worker mandate in that employers will, in certain instances, be permitted to make reasonable accommodations to mandatory vaccination policies for employees with legitimate religious or medical reasons, but will not permit any testing options in lieu of the vaccine. The mandate will not apply to fully remote employees or those who are alone at a worksite. The city has not yet announced whether employers will face inspections or fines if they fail to follow the mandate, but it intends to release implementation and enforcement guidelines by December 15, 2021.
The new mandate is the first of its kind on a local level while the federal vaccine rule for private employers with 100 or more employees remains on pause amid several legal challenges. The city mandate is also set to go into effect only days before the New York City mayoral transition, leaving future enforcement of the mandate uncertain.
- Stay abreast of further city announcements concerning additional guidance on the vaccine mandate.
- Operate under the assumption that the vaccine mandate will take effect December 27, 2021, and notify employees of the new mandate so unvaccinated employees have sufficient time to get vaccinated.
- Implement procedures to verify that applicable in-person employees vaccination status and prepare to collect vaccination records as confidential medical information.
- Prepare to establish a mandatory vaccination policy and a process for employees to request exemptions, to the extent your business has not already done so.
- Begin considering operational contingency plans if your business expects that a significant portion of the workforce will not get vaccinated.
State Minimum Wage And Overtime-Exempt Salary Levels Will Increase Again On December 31, 2021
On December 31, 2021, the minimum wages, hospitality tip credits, and the minimum salary levels for overtime-exempt employees will increase.
For employers with workers in New York City, the minimum hourly rate will remain at $15.00 per hour. However, the minimum wages for workers located in Nassau, Suffolk and Westchester counties, will increase from $14.00 to $15.00 per hour. The wages for workers in the remainder of New York State will increase from $12.50 to $13.20 per hour. There is an exception for individuals working at fast food establishments anywhere in New York State, as the minimum wage for these individuals was raised to $15.00 per hour as of July 1, 2021.
Tipped employees in the hospitality industry (businesses running a restaurant or hotel) working outside of New York City will also see an increase in their minimum wages. Specifically, minimum wages for food service workers that are located in Nassau, Suffolk, and Westchester counties will increase from $9.35 in cash with a $4.65 tip credit per hour, to $10.00 in cash with a $5.00 tip credit per hour; whereas minimum wages for food service workers that are located in the remainder of New York State (except New York City) will increase from $8.35 in cash with a $4.15 tip credit per hour, to $8.80 in cash with a $4.40 tip credit per hour. Minimum wages for service employees located in Nassau, Suffolk, and Westchester counties will increase from $11.65 in cash with a $2.35 tip credit per hour, to $12.50 in cash with a $2.50 tip credit per hour; whereas minimum wages for service employees that are located in the remainder of the State (except New York City) will increase from $10.40 in cash with a $2.10 tip credit per hour, to $11.00 in cash with a $2.20 tip credit per hour.
Finally, the minimum salary threshold to classify employees as exempt from overtime requirements under the executive and administrative exceptions will also increase outside of New York City. Specifically, salaries for executive and administrative employees located in Nassau, Suffolk and Westchester counties will increase from $1,050 to $1,125 per week; whereas executive and administrative employees located throughout the remainder of the State (except New York City) from $937.50 to $990 per week. Notably, there is no minimum salary requirement for the professional exemption under New York State law, so employers seeking to classify such employees as exempt will have to comply with the federal minimum salary threshold, which is currently $684.00 per week, unless an exemption from this salary requirement otherwise applies.
- Review existing pay practices to ensure compliance with the new minimum wage requirements prior to December 31, 2021.
- Confirm employees as properly classified as exempt, including meeting the higher salary thresholds.
- Review employees current work location (including if employees have relocated during COVID-19) to confirm compliance with the applicable county and city requirements.
Paid Family Leave Law Expanded To Include Care For Siblings
In effect since 2018, New York’s Paid Family Leave law 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 to assist with family situations when a spouse, domestic partner, child or parent is deployed on active military service. Currently, family care leave covers caring for a spouse, domestic partner, child, parent, parent-in-law, grandparent or grandchild with a serious health condition. Effective January 1, 2023, the amendment will expand this definition to include an employee’s biological, adopted, step, and half-sibling(s).
- Update NYPFLL policies and practices in advance of the amendment’s effective date to ensure compliance.
Expanded Protection For Whistleblowers
In November 2021, New York amended its whistleblower law, New York Labor Law §740. The amendments will go into effect on January 26, 2022, and will provide significant expansions in favor of employees. The amendments include the following:
- Expansion of who is considered an “employee.” The law no longer solely applies to individuals currently employed by the employer, and now includes former employees, as well as independent contractors.
- Broadens scope of protected activities. The amendments prohibit employers from retaliating against any employee because the employee reasonably believes the action violates the law or poses a substantial and specific danger to the public health or safety. Prior to the amendments, employees were only protected for reporting or complaining about actual violations of the law.
- Notification to employer. Pursuant to the amendments, employees only have to make a “good faith effort” to notify their employer of any potential violation, before providing the employer an opportunity to cure. Further, employees do not need 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) activity could reasonably be expected to lead to the endangering of a minor; (4) the employee reasonably believes that 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.
- Expansion of types of “retaliatory acts.” The amendments define retaliatory action as “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. The amendments extend the statute of limitations for bringing a claim from one to two years from the date of the alleged retaliatory action.
- Entitlement to jury trial & other remedies. The amendments now entitle employees to a jury trial, and further expand the remedies and damages available to an employee. This includes front pay in lieu of reinstatement, punitive damages if the violation was willful, malicious, or wanton, and eligibility for a civil penalty not to exceed $10,000.
- Posting requirement. Employers are now required to post notice of the protections, rights, and obligations of employees under the law. The notice should be posted conspicuously and in “accessible and well-lighted places.”
- Review and update whistleblower policies and permitted disclosure provisions in template employment-related agreements in advance of the amendments’ effective date to ensure compliance.
- Train HR professionals, managers and supervisors on the expanded protections for whistleblowers.
- Prepare and post required notices.
New Requirements For Employee Monitoring
In November 2021, New York Governor Kathy Hochul signed into law a bill that will require New York private sector employers to provide written notice to employees who are subject to electronic monitoring, prior to engaging in this type of monitoring in the workplace. This new law, Civil Rights Chapter 6, Article 5, Section 52-C*2, will take effect on May 7, 2022.
The notice must be in writing, in an electronic record, or in another electronic form and acknowledged by the employee either in writing or electronically. Employers must post the notice of electronic monitoring in a conspicuous place that is readily available for viewing by its employees who are subject to electronic monitoring.
The notice should inform 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, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.
If an employer is found to be in violation of this section, they will be subject to a maximum civil penalty of $500 for the first offense, $1,000 for the second offense and $3,000 for the third and each subsequent offense.
This law will not apply to processes that are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage, that are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual, and that are performed solely for the purpose of computer system maintenance and/or protection.
- Review and update employment policies in advance of the law’s effective date to ensure compliance.
- Prepare and post required notices.
Employees Facing Layoff May Petition Employer To Participate In A Shared Work Program
In October 2021, Governor Hochul signed legislation allowing employees facing potential layoff to petition employers to participate in a shared work program. Under this amendment to labor law, the majority of employees may submit a request for a shared work program in writing to the employer before the layoff or within 10 days of the layoff. The employer then has seven days to respond and is not required to implement the program.
- New York employers who are considering reductions in force should familiarize themselves with these provisions so that they are prepared to consider and respond to any employee petitions for a shared work program.
New COVID-19 Vaccine Paid Leave For New York Employees
On March 12, 2021, then-Governor Andrew M. Cuomo signed Senate Bill S2588, which grants time off for public and private employees to receive a COVID-19 vaccination. The legislation was effective immediately, and expires on December 22, 2022.
Under the new law, employees receiving the COVID-19 vaccination must be provided with a paid leave of absence from their employer for a sufficient period of time, not to exceed four hours per vaccine injection, unless an employee is permitted to receive a greater number of hours pursuant to a collective bargaining agreement or as otherwise authorized by an employer. Time must be paid at the employee’s regular rate of pay for each COVID-19 vaccine injection. This leave of absence for the COVID-19 vaccination cannot be charged against any other leave, such as paid time off, sick leave, or any rights and benefits which employees may accrue through a collective bargaining agreement, and must be provided on top of any such leave.
New York City employers should also be aware that the New York City Council recently passed a bill amending its Earned Safe and Sick Time Act requiring all private-sector employers to provide their employees with four hours of paid COVID-19 child vaccination leave for each of their children, per vaccine injection, retroactive to November 2, 2021. The approved bill is now before Mayor de Blasio and will take effect immediately upon his signature.
- If you haven’t already, immediately update leave policies to ensure compliance.
- Train HR professionals, managers and supervisors on new leave entitlements.
- Coordinate responses to employees seeking vaccination leave.
- NYC employers should monitor the status of the pending COVID-19 Child Vaccination Leave law to ascertain if/when it may go into effect.
Employers Must Develop And Implement Airborne Infectious Disease Exposure Prevention Plan
In May 2021, New York passed the New York Health and Essential Rights Act (NY HERO Act), mandating extensive workplace health and safety protections in response to the COVID-19 pandemic. The NY HERO Act requires employers to put in place an airborne infectious disease exposure prevention plan, either by adopting one of the various industry-specific model plans released by the New York State Department of Labor or by establishing an alternative plan that meets or exceeds certain minimum requirements. Employers must implement their prevention plan whenever an airborne infectious disease is designated by the New York State Commission of Health as a highly contagious communicable disease that presents serious risk of harm to the public health. Currently, the New York State Commission of Health has designated COVID-19 as such and employers must continue to implement their respective prevention plans through at least December 15, 2021, at which time the commissioner will decide whether to extend the designation further.
The NY HERO Act also requires that employers provide the plan to new hires, post the plan in a prominent location and include it in their employee handbook, if the employer maintains one. Under the NY HERO ACT, employers with at least 10 employees must also permit employees to create a joint employer-employee workplace health and safety committee, with specific requirements further delineated in the act. Employers with unionized employees have additional requirements for compliance. If an employer fails to comply with the NY HERO Act, fines may be assessed by the state and employees have a private right of action.
- If you haven’t already, adopt, and provide notice to employees, of an airborne infectious disease exposure prevention plan, including updating any employee handbook to include such plan.
- Continue implementing prevention plans until at least December 15, 2021, and by on the lookout for additional extensions by the New York State Commission of Health.
- Train HR professionals, managers and supervisors on the new law, including employees’ right to create a joint employer-employee workplace health and safety committee.
New York City Restricts The Use Of Artificial Intelligence Recruitment And Selection Tools
On December 11, 2021, New York City enacted new legislation regarding the use of automated employment decision tools (AEDTs). Effective January 1, 2023, employers will be prohibited from using AEDTs to screen employees or candidates for employment or promotion unless the tool has undergone an independent bias audit no more than one year prior to its use.
Section 20-870 of New York’s Administrative Code defines an AEDT as, “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.” An AEDT does not include, “a tool that does not automate, support, substantially assist or replace discretionary decision-making processes and that does not materially impact natural persons, including, but not limited to, a junk email filter, firewall, antivirus software, calculator, spreadsheet, database, data set, or other compilation of data.” At this time, Section 20-870 does not provide any examples of what specific tools are included within the definition of an AEDT.
The new law also provides that an acceptable independent “bias audit” includes, but is not limited to, testing of the AEDTs to assess whether they have a disparate impact on persons based on race, ethnicity, or sex (persons of federal EEO-1 Component 1 category). Once the new law goes into effect, a summary of the most recent bias audit report, as well as the distribution date of the tool to which such audit applies, must be made publicly available on the employer’s website prior to the use of such tool.
In addition to the above, employers that continue to use AEDTs must provide notice to each affected employee or candidate who resides in the city of the following:
- The employer used an AEDT in connection with the assessment or evaluation of that employee or candidate. Such notice must be made no less than ten (10) business days before the use, and allow a candidate to request an alternative selection process or accommodation; and
- The job qualifications and characteristics that such automated employment decision tool will use in the assessment of such candidate or employee. Such notice shall be made no less than ten (10) business days before such use.
If not disclosed on the employer’s website, information about the type of data collected for the AEDT, the source of such data, and the employer’s retention policy must be made available upon written request by a candidate or employee. However, an exception applies and the information need not be disclosed if disclosure would violate local, state, or federal law, or interfere with a law enforcement investigation.
Notably, under the new law, an employer’s failure to comply with the new rules surrounding the use of AEDTs will subject them to civil penalties ranging from $500 to $1,500 per each violation. Each day that an employer uses an AEDT in violation of Section 20-870 is considered a separate violation. Likewise, failure to provide the required notice to affected employees and candidates will also be deemed as separate violations.
- Review the tools the company uses when assessing employees as well as candidates for hire or promotion.
- If unsure whether the company’s tools are classified as an AEDT under Section 20-870, consult with counsel to determine which specific tools will likely be deemed to fall within the scope of the new legislation.
- If employers intend to continue using AEDTs, obtain an independent bias audit to determine whether continued use of AEDTs is in the company’s best interests, especially in light of the reporting and advance notice requirements that will go into effect on January 1, 2023.
New York City Requires Two-Step Process for Background Checks
This summer the New York City Council amended New York City’s Fair Chance Act (FCA), also known as the “ban the box” law, to significantly expand protections for both applicants and current employees. The FCA, which originally took effect in 2015 and applies to all New York City employers with four or more employees, generally prohibits employers from making inquiries about an applicant’s criminal record until after a conditional offer of employment is made and then requires employers to engage in a Fair Chance Process before withdrawing such conditional offer.
The new amendments, which went into effect in July 2021, now require that employers follow a two-step process when conducting background checks on applicants. In step one (prior to a conditional offer being made), an employer must first review an applicant’s non-criminal background information (e.g., educational background and references). During this first step, an employer must make sure an applicant’s criminal history information is not available to the individual(s) making the hiring decision. Further, employers should not state in job applications or advertisements, or at any point prior to making the conditional offer, that a “background check” will be required for the job. This requirement also applies to any authorization an applicant is requested to sign in connection with collecting information pursuant to the federal Fair Credit Reporting Act. Employers are instead encouraged to use terms such as “consumer report” or “investigative consumer report.” If an employer determines that the noncriminal information does not pose an issue with hiring the applicant, a conditional offer may be made. In step two (after a conditional offer is made), an employer may then conduct a criminal record review and, if an employer seeks to withdraw an offer, must still engage in a Fair Chance Process. At step two, an employer cannot consider any noncriminal information in withdrawing an offer unless the employer can prove it could not have reasonably known of the noncriminal information prior to making the conditional offer and the employer would not have made the offer if it had known this noncriminal information prior to making the conditional offer. Since driving records may contain both criminal and noncriminal information, this material should be reviewed in step two.
The amendments also expand the FCA’s protections to cover current employees and independent contractors and broaden the FCA’s scope of criminal history to include pending arrests and criminal accusations. With respect to current employees, an employer must engage in a Fair Chance Process (with a slightly revised list of factors) before taking adverse action against an employee for a pending case or conviction that occurs during employment. Additionally, employers may not ask applicants or employees about, or take adverse actions against them, with respects to certain categories of actions referred to as “non-convictions.” Enforcement Guidance that was issued by New York City Commission on Human Rights provides a non-exhaustive list of “non-convictions.” Employers who wish to withdraw an offer, or take adverse action against a current employee, after engaging in a Fair Chance Process should utilize the slightly revised Fair Chance Notice and must allow applicants five business days (it was previously three) to respond.
- Review recruitment policies/processes, job applications, advertisement materials and background check authorization forms to make sure all are in compliance with the FCA’s amendments and, in particular, the new two-step process.
- Confirm with background check vendors that they can, and are, bifurcating the noncriminal and criminal information, and otherwise put policies in place to ensure hiring decision makers are not reviewing criminal history information until after a conditional offer is made.
- Ensure HR professionals understand the broaden protections of the FCA that apply to current employees.