Hiring

Advertising

What are the requirements relating to advertising open positions?

In addition to restrictions arising from applicable federal and state anti-discrimination laws, New York City passed a pay transparency law, effective November 1, 2022, that will require covered employers in New York City to include wage information in advertisements for jobs, promotions and transfer opportunities. All New York City employers with four or more workers (including employees and independent contractors) are covered by the law. The four workers do not need to all work in New York City. As long as one of the workers works in New York City, the employer is covered. The new law makes it “an unlawful discriminatory practice” for a covered employer or employment agency (or employees or agents thereof) to advertise a job, promotion or transfer opportunity without stating “the minimum and maximum annual salary or hourly wage” for the position in such advertisement. In stating the minimum and maximum annual salary or hourly wage for a position, the range may extend from the lowest to the highest annual salary or hourly wage the employer believes in good faith at the time of the posting that it would pay for the advertised job, promotion or transfer opportunity. A similar bill has been passed by the New York State legislature, which has been sent to the Governor for signature. These developments follow the New York State’s Salary History Law, effective January 6, 2020, which prohibits prospective employers from requesting or requiring the disclosure of a job applicant’s previous salary history on any job solicitation or application. A similar law is in effect for New York City employers. Additionally, New York City law prohibits “an advertisement for any job vacancy” which indicates that applicants must be employed at the time of application (N.Y.C. Admin. Code § 8-107.1(21)(a)(2)), while New York City’s Fair Chance Act and the Westchester Fair Chance to Work Act each prohibit employers in their jurisdictions from making any inquiry about a prospective employee’s criminal history in any job advertisement or solicitation.

Background checks

(a)Criminal records and arrests

Employers may not inquire about, or take any adverse action with respect to, any arrest or criminal accusation not currently pending, or any youthful or sealed conviction (N.Y. Exec. Law § 296(16)). New York City passed the Fair Chance Act, which became effective on October 27, 2015, prohibiting employers from inquiring about an applicant’s criminal history before making a conditional offer of employment, including on any job solicitations or advertisements. This law was further amended in 2021 and now requires New York City employers that perform criminal background checks as part of their onboarding processes (with limited exceptions) to only do so at the very final stage of the hiring process and only after performing and reviewing any non-criminal background checks (e.g., for prior employment, education, character, general reputation, person characteristics, mode of living, etc.), including drug tests. In practice this means employers required to follow the law must approach background checks in two phases: the first pre-conditional offer, to review any non-criminal information and the second post-conditional offer, to review any criminal information. Westchester County passed a similar law which went into effect March 4, 2019. Several other cities and counties throughout the state have followed suit.

Moreover, New York employers may not take adverse employment actions based on any prior conviction, unless:

  • there is a direct relationship between one or more of the previous criminal offenses and the employment sought or held by the individual; or
  • the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public (N.Y. Correct. Law § 752, N.Y. Exec. Law § 296(16) (providing a private right of action)).

 

Enumerated factors to be considered in determining if an adverse employment action is appropriate can be found in N.Y. Correct. Law § 753.

(b)Medical history

Employers may not discriminate against employees and applicants on the basis of any actual or perceived disability under the New York State Human Rights Law and the New York City Human Rights Law. Employers are also prohibited from administering or requiring applicants to undergo genetic testing, as well as soliciting for such information, except in limited circumstances relating to an employee’s susceptibility to a disease, which relates to the job in question (N.Y. Exec. Law § 296(19)). Where a background check reflects medical history or a prior adverse employment action due to medical history, such facts may be disclosed only to a “physician designated by the [employee]” (N.Y. Gen. Bus. Law § 380-q). Finally, New York State amended its Human Rights Law to prohibit discrimination based on an employee’s or employee’s dependant’s reproductive health choices, which follows similar legislation passed by New York City.

(c)Drug screening

In light of the recently passed Marijuana Regulation and Taxation Act (MRTA), effective March 31, 2021, which legalized adult recreational marijuana-use in the state and also made it unlawful for employers to discriminate against employees for their lawful, off-duty marijuana use, except in limited circumstances, it appears that it is now unlawful for employers to take adverse action against employees or applicants solely for failing a marijuana drug test. This is because the MRTA amended the New York Labor Law to recognize lawful cannabis-use as protected lawful, off-duty conduct. Thus, while not expressly addressed by the statute, this implies that an employer could not, for example, refuse to hire a candidate solely because he or she failed an on-boarding drug test for marijuana or terminate an employee’s employment solely because he or she failed a random workplace drug test for marijuana. That said, given that the MRTA provides employees with certain exemptions from treating lawful, off-duty marijuana use as a protected activity – such as when an employee is impaired on the job or when such use affects the health and safety of the workplace – it appears that employers may still drug test for marijuana, and take adverse action based on failing such test, if such circumstances are satisfied.

This development follows New York City’s Pre-Employment Marijuana Testing Ban, which went into effect May 10, 2020. It prohibits New York City employers from requiring testing for marijuana or tetrahydrocannabinols (THC), the active ingredient in marijuana, as a condition of employment, with exceptions for safety and security sensitive jobs, and those tied to a federal or state contract or grant (e.g., police officers or those supervising or caring for children or vulnerable individuals).

Drug addiction (actual or perceived) qualifies as a protected disability under the New York State Human Rights Law and employers thus should be wary of potential discrimination claims arising from decisions based on drug testing, where drug use does not interfere with the employee’s ability to perform his or her job (Doe v. Roe, Inc., 160 A.D.2d 255 (1st Dep’t 1990)). As explained by the New York State Appellate Division, any pre-hiring procedures which implicate a disability must bear “a rational relationship to” and be “a valid predictor of employee job performance” (Id. at 256). Further, the court held that:

 

while [an employer] may be legitimately entitled to discriminate against users of controlled narcotic substances, when challenged it must come forward with evidence establishing that its testing method accurately distinguishes between [narcotic] users and consumers of lawful foodstuffs or medications. (Id.).

 

This issue is further complicated by New York State’s Compassionate Care Act, legalizing medical marijuana, which protects medical marijuana recipients as “disabled” under the New York State Human Rights Law. Although the courts have yet to definitively rule on a situation involving lawful medical marijuana use by applying the State Human Rights Law, in July 2017 an Administrative Law Judge serving with New York City’s Office of Administrative Trials and Hearings found that a lawful medical marijuana user could not have his license to drive a New York City taxi revoked on that basis alone, because the driver’s medical marijuana use was now protected by law (Taxi & Limousine Comm’n v. WR, OATH Index 2503/17 (July 14, 2017) adopted, Comm’r Dec (July 25, 2017))

(d)Credit checks

In addition to federal limitations, New York employers may obtain credit information concerning current or potential employees by requesting consumer reports, which may be used in decision making only with respect to “employment, promotion, reassignment or retention” (N.Y. Gen. Bus. Law § 380-a). Employers must provide notice to employees and obtain authorization from an employee before seeking a consumer report (N.Y. Gen. Bus. Law § 380-b, c).

Except for limited exemptions, New York City's Fair Chance Act bans employers from requesting or using consumer credit history in connection with employment applications (N.Y.C. Admin. Code § 8-107(24)).

(e)Immigration status

The New York State Human Rights Law and the New York City Human Rights Law prohibit discrimination against applicants based on their actual or perceived alienage or citizenship status.

(f)Social media

New York law does not address whether an employer may use social media in making an employment decision. However, employers are prohibited from taking adverse employment actions based on certain off-duty conduct, which could be discovered through social media (N.Y. Labor Law § 201-d).

(g)Other

Employers generally cannot fingerprint job applicants or employees (N.Y. Labor Law § 201-a). Employers cannot request that an applicant or employee undergo a polygraph test (N.Y. Labor Law §§ 734 and 735).

Wage and hour

Pay

What are the main sources of wage and hour laws in your state?

Article 6 of the New York Labor Law is the primary source of wage and hour laws in the state, setting forth, among other things:

  • requirements regarding wage deductions;
  • frequency of payments;
  • manner of payment; and
  • exemptions from coverage.

 

Regulations promulgated by the New York State Department of Labor can be found under Title 12 of the New York Codes, Rules and Regulations.

What is the minimum hourly wage?

Since December 31, 2021, the minimum wage has been $13.20 per hour, except in New York City and Nassau, Suffolk, and Westchester counties, where it increased to $15 per hour. As of July 1, 2020, the minimum wage for workers in the fast-food industry has reached $15 per hour state-wide, catching up to the threshold met in New York City on December 31, 2018. 

While $15 per hour continues to be the minimum wage in New York City and Nassau, Suffolk, and Westchester counties, beginning in 2021, annual increases for the remainder of the state will continue until the rate reaches $15 per hour. Such annual increases will be published by the state’s Commissioner of Labor on or before October 1 each year and will be based on percentage increases determined by the Director of the Division of Budget, based on economic indices, including the Consumer Price Index.

Lastly, employers of workers in miscellaneous industries covered by the Minimum Wage Order for Miscellaneous Industries and Occupations, such as car wash attendants, nail salon workers, tow truck drivers, dog groomers, wedding planners, tour guides, valet parking attendants, hairdressers, aestheticians, golf and tennis instructors, and door-persons, are now required to pay such workers the normal minimum wage. Previously, such workers could earn far below the state minimum wage if they earned a sufficient amount in tips to cover the difference. However, beginning on June 30, 2020, employers of such workers were required to increase wages, such that that difference between such workers’ prior subminimum wage and the applicable minimum wage was cut in half. Further, as of December 31, 2020, such employers now are required to pay these tipped workers at least the normal minimum wage.

However, the aforementioned elimination of subminimum wages is not applicable to all employers. It does not affect employers that operate restaurants and hotels, who are covered by the Hospitality Industry Wage Order. Accordingly, these employers may still apply a “tip credit” towards minimum wages, with the amount varying by location. Since December 31, 2021, and provided such employees earn a certain minimum average of tip earnings per hour, direct cash payments from employers for these employees throughout New York State have been as follows: 

  • $12.50 per hour in New York City and Nassau, Suffolk, and Westchester counties (assumes $2.50 tip credit, for a $15 per hour total minimum wage); and
  • $11.00 per hour throughout the rest of the state (assumes $2.20 tip credit, for a $13.20 per hour total minimum wage).  

What are the rules applicable to final pay and deductions from wages?

Final wages must be paid by no later than the next regular pay date following cessation of employment, regardless of the reason for termination (N.Y. Labor Law § 191). Employers must provide terminated employees with written notice of the date of termination and the date that any employee benefits will cease (N.Y. Labor Law § 195(6)).

Section 193 of the New York Labor Law prohibits wage deductions unless they are “authorized in writing by the employee and are for the benefit of the employee.” Employers generally cannot, among other things, make deductions for overpayment of wages or for reimbursement for lost or damaged employer property (including by way of separate transaction).

In certain instances, an employee may be entitled to receive wage supplements (e.g., vacation, holiday and severance pay) on termination of employment, if such are provided pursuant to contract or company policy or practice (N.Y. Labor Law §§ 190 and 191). Non-discretionary and formulaic bonuses may, in some instances, constitute “wages” under the New York Labor Law, to which an employee is entitled, even if terminated (e.g., Guiry v. Goldman, Sachs & Co., 31 A.D.3d 70, 72 (2006)).

Hours and overtime

What are the requirements for meal and rest breaks?

Generally, all persons subject to the New York Labor Law are entitled to a 30-minute meal break between 11am and 2pm, provided that such an employee works at least a six-hour shift over a day-long period (N.Y. Labor Law § 162(2)). Employees are entitled to an additional meal break “of at least twenty minutes” between 5pm and 7pm if their shift begins before 11am (N.Y. Labor Law § 162(3)). Employees working shifts “of more than six hours” beginning between 1pm and 6am are entitled to a 45-minute meal break (N.Y. Labor Law § 162(4)). Specific rules apply to factory workers (N.Y. Labor Law § 162). New York also requires lactation breaks (N.Y. Labor Law § 206-c).

What are the maximum hour rules?

“Nothing in the New York Labor Law restricts the number of hours” employees can work, subject to “overtime, spread of hours, rest period and day of rest requirements of the law,” as well as applicable child labor laws (N.Y.S. Dept. of Labor Opinion Ltr., RO-09-0187 (March 18, 2010)).

How should overtime be calculated?

Non-exempt employees are entitled to no less than one-and-a-half times their regular rate of pay for time worked in excess of 40 hours per work week (12 N.Y.C.R.R. §142-2.2). Employees who are exempt from overtime under the federal Fair Labor Standards Act but still entitled to overtime under the New York Labor Law are entitled to no less than one-and-a-half times the prevailing minimum wage rate for time worked in excess of 40 hours per workweek (N.Y.S. Dept. of Labor Opinion Ltr., RO-10-0025 (June 30, 2010)).

What exemptions are there from overtime?

New York generally recognizes the exemptions set forth by the Fair Labor Standards Act, subject to a weekly salary threshold requirements above those under federal law. Employees who are exempt from overtime under federal law but are not exempt under state law because they do not meet the minimum salary thresholds for exemption must be paid no less than one-and-one-half times the prevailing minimum wage rate for overtime worked (12 N.Y.C.R.R. §142-2.2, see also N.Y.S. Dept. of Lab. Opinion Ltr., RO-10-0025 (June 30, 2010)). 

Since December 31, 2020, the salary thresholds for exemptions under the New York Labor Law have been as follows:

  • $1,125 per week in New York City and Nassau, Suffolk, and Westchester counties; and
  • $990.00 per week throughout the rest of the state (again, as opposed to $684 per week under federal law).
Record keeping

What payroll and payment records must be maintained?

With each wage payment, an employer must provide documentation identifying: 

  • the employee’s name;
  • dates of work covered by the payment;
  • the employer’s name, address, and phone number;
  • rate(s) of pay and method of calculation;
  • gross wages;
  • deductions;
  • any allowances claimed; and
  • net wages (N.Y. Labor Law § 195). 

 

For non-exempt employees, such statements must also include:

  • regular rate of pay;
  • overtime rate;
  • number of hours worked; and
  • number of overtime hours worked (Id.).

 

Additional requirements may apply for specific categories of employee. Weekly payroll records, including the above information, must be maintained for six years (N.Y. Labor Law § 195(4); 12 N.Y.C.R.R. § 142-2.6).

The New York Wage Theft Prevention Act requires employers to maintain a written acknowledgement from all employees for six years, indicating that they have received a notice containing:

  • rate of pay;
  • overtime rate;
  • method for calculating wages (e.g., hourly or piecemeal);
  • pay date;
  • any allowances that the employer will claim (e.g., tipping, meals, or lodging);
  • the employer’s name;
  • the address of the employer’s main office or principal place of business, a mailing address (if different), and telephone number; and
  • “such other information as the commissioner deems material and necessary” (N.Y. Labor Law § 195(1)(a)). 

 

The New York Minimum Wage Law (N.Y. Labor Law § 650 and following) requires employers to maintain for six years records demonstrating compliance with minimum wage laws.