In Case You Missed It: New York City Closes Out 2021 with New Laws

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

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

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

  • 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.

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