In the weeks leading up the new year, NYC employers scrambled to comply with COVID-19-related orders and mandates, including the “vax-to-work” mandate, which became effective in New York City on December 27, 2021. But amidst the end-of-year chaos, the New York City Council was hard at work passing several amendments and new laws to further alter the employment landscape.
Three important updates, addressed below, amend the NYC’s Earned Safe and Sick Time Act (“ESSTA”) and the NYC Human Rights Law (“NYCHRL”) and enact a limitation on automation of certain human resources functions. While the Automated Employment Decision Tools Law is not effective until January 1, 2023, employers would be prudent to familiarize themselves with this law now, as it fundamentally alters certain automated hiring and promotion operations for employers in NYC.
ESSTA Amendments Provide for COVID-19 Child Vaccination Leave
Effective December 24, 2021, the new amendments to the ESSTA provide for 4 hours of paid leave to employees who either need to accompany their children (under the age of 18) to receive COVID-19 vaccinations shots (or boosters) or need to take care of such children if they experience side effects from COVID-19 vaccinations (or boosters). Per the Department of Consumer and Worker Protection (“DCWP”), this leave is retroactive to November 2, 2021.
This leave is authorized in addition to the employee’s own of COVID-19 vaccination leave under New York State law. In addition, employers should recall that NYC’s Temporary Schedule Change Law permits employees to request up to two days unpaid leave for vaccination or side effects for themselves or to care for a family member.
The law provides for a 60-day phase in period after which penalties for non-compliance can be assessed, including:
- up to three times the wages that should have been paid under this chapter or $250, whichever is greater (for each instance of safe/sick time taken by an employee but unlawfully not compensated by the employer);
- $500, if sick/safe time is denied or charged against other accruals.
This amendment is set to expire December 31, 2022.
NYCHRL Amendments Require Employers to Post Salary Ranges in Job Postings
Effective April 2022, if not vetoed by NYC Mayor Eric Adams by January 14, 2022, amendments to the NYCHRL would make it an “unlawful discriminatory practice for an employment agency, employer, employee or agent thereof to advertise a job, promotion or transfer opportunity without stating the minimum and maximum salary for such position in such advertisement.” The salary range can be “extend from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.” The law applies to employers of 4 or more employees (including independent contractors) as well as employment agencies, but excludes temporary employment agencies. Under the general provisions of the NYCHRL, the NYCCHR has the authority to impose civil penalties up to $125,000 for violations of the NYCHRL.
The NYC Commission on Human Rights (“NYCCHR”) is expected to promulgate rules to implement the law’s before the effective date. At present, without clarifying regulations, the geographic scope of the new amendment remains unclear. Challenges to this amendment are expected on First Amendment compelled speech grounds.
Automated Employment Decisions Tools Law
Enacted at the end of 2021, the Automated Employment Decision Tools Law limits NYC employers’ use of certain computer-driven tools in making hiring, firing or promotion decisions. Effective January 1, 2023, such tools may not be used unless:
- they have been the subject of a bias audit conducted no more than one year prior to the use of such tool, and
- a summary of the results of the most recent bias audit of such tool as well as the distribution date of the tool to which such audit applies has been made publicly available on the website of the employer or employment agency prior to the use of such tool.
The use of automated employment decision tools turns on whether such tools supplant the human discretionary decision-making processes. Automated employment decision tools are defined in the law 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.” The law excludes from the definition any 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.” It remains unclear at this time what a “bias audit” entails, aside from the statutorily mandate third-party review of the relevant AI-driven tools.
Penalties for violation of the new law range from $500 to $1,500. Aggrieved candidates or employees are not precluded by this law from otherwise bringing any civil claims in a court of competent jurisdiction.
Employers should take their time to review the functional role of the tools used by their internal HR departments as well as third-party vendors. The NYCCHR is expected to promulgate regulations to clarify the obligations of employers under this new law.
As always, Woltz & Folkinshteyn, P.C. welcomes your questions about this and any other employment concerns that you may have.