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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 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)). Further, New York City’s Salary History Law now prohibits prospective employers from requesting or requiring the disclosure of a job applicant’s previous salary history on any job solicitation or application. Further, New York City’s Fair Chance Act prohibits employers from making any inquiry about a prospective employee’s criminal history in any job advertisement or solicitation.
What can employers do with regard to background checks and inquiries?
(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.
Moreover, 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 offences 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 are 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).
(c) Drug screening
New York does not have a statute governing drug and alcohol screening of employees or applicants (other than for transportation providers, 17 N.Y.C.R.R. § 720.0 and following).
Drug addiction (actual or perceived) qualifies as a protected disability under the New York State Human Rights Law and employers should thus 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 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 appellate division 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. While there have been no state court decisions applying the State Human Rights Law to a situation involving a lawful medical marijuana user, in July 2017 an Administrative Law Judge serving with New York City Office of Administrative Trials and Hearings ruled 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 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). New York is also considering legislation regarding the use of social media by employers in employment decisions (N.Y. Senate-Assembly Bill S. 3927, N.Y. Assembly Bill A. 2891).
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
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, 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?
Effective December 31 2017, the minimum wage is $10.40 per hour, except in New York City, where it increased to $13 (unless the employer has 10 or fewer employees, in which case the minimum wage is $12 per hour), and in Nassau, Suffolk, and Westchester, where it increased to $11 per hour. The minimum wage for workers in the fast-food industry is $11.75 per hour state-wide, and $13.50 in New York City.
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 11:00am and 2:00pm, 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 5:00pm and 7:00pm if their shift begins before 11:00am (N.Y. Labor Law § 162(3)). Employees working shifts “of more than six hours” beginning between 1:00pm and 6:00am 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). Exempt employees 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 requirement above that of federal law, provided that exempt employees 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)).
Effective as of December 31 2017, the salary thresholds for exemptions under the New York Labor Law are as follows:
- $975 per week in New York City for employers with more than 10 employees;
- $900 per week for New York City employers with 10 or fewer employees;
- $825 per week in Nassau, Suffolk, and Westchester counties; and
- $780 per week throughout the rest of the state (as opposed to $455 per week under federal law).
These thresholds will increase on December 31 2018.
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;
- 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.
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