It is hard to believe that we are almost three weeks into 2023.  As CT employers assess the road ahead, these are some of the new and not-so-new employment laws to stay on top of in the coming months.

• Clean Slate Law.  On January 1, 2023, CT saw the start of the implementation of the so-called “Clean Slate Law”.  The law provides for automatic erasure of certain enumerated criminal records after a specified time period following conviction.  Employers are prohibited from inquiring about a job applicant’s erased criminal records or deny employment based on an applicant’s erased criminal records.  An employment application form that contains any question concerning the criminal history of the applicant shall contain a notice, in clear and conspicuous language, notifying the applicant that he or she is not required to disclose the existence of any record which has been erased pursuant to the Clean Slate Law.  Employers should not only scrub their employment applications of unlawful queries, but should train hiring managers on this new law, so that inappropriate questions are not asked during interviews. 

• Minimum Wage Increases.  Signed into law by Governor Ned Lamont in 2019, the law provides for a scheduled increase of minimum wage to $15 an hour on July 1, 2023.  Beginning January 1, 2024, the “minimum fair wage” is set to be adjusted by the percentage change in the employment cost index as calculated by the US Department of Labor.

• Recreational Adult-Use Cannabis.  Effective July 1, 2022, An Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis prohibits CT employers from disciplining current employees or denying employment to prospective applicants based on lawful off-duty recreational marijuana use, with some notable exceptions, including, e.g., when such hiring or failure to take adverse employment action would put the employer in violation of federal law or contract, or when the employer is considered “exempted” under the statute.  The law does not prohibit employers from maintaining alcohol and drug-free workplaces and allows employee discipline and other adverse actions based on articulable signs of impairment while on the job.

• Fair Employment Practices Act (“CFEPA”).  With amendments effective in October 2022, the law requires employers with one or more employees to provide a reasonable leave of absence for reasons relating to domestic violence and otherwise prohibits employers from discriminating against employees based on an individual’s status as a domestic violence victim.  Employers must also post this notice in the workplace.

As always, Woltz & Folkinshteyn, P.C. welcomes your questions about this and any other employment concerns that you may have.

Now that the tumultuous 2022 is over, here are the four employment law developments to stay on top of in 2023. Employers have to stay on their toes in the year ahead!

Non-Competes. Employers have used non-compete and non-solicit clauses in employment agreements for a variety of reasons for many years. A number of states as well as the FTC have now stepped in to regulate the use of these post-employment clauses, with a particular focus on non competes. On January 5, 2023, the FTC proposed a rule to ban the use of non-compete clauses in all employment agreements. The proposed rule would also require employers to rescind existing non-compete agreements. A number of jurisdiction have already banned or limited the application of non-competes. For example, Virginia and Maryland have banned non-competes for low-wage or hourly employees. Washington, D.C.’s delayed ban on most non-competes went into effect in October 2022.

Salary Transparency. Last year, many states and municipalities have come on-board in regulating how employers advertise for open positions. To close out the year, NY Governor Kathy Hochul signed into law a NY Labor Law amendment that mandates disclosure of salary ranges for open positions, promotions or transfers. The tailwinds are only going to increase this year in many states.

Off-Duty Cannabis Use. As many jurisdiction are increasingly moving toward cannabis legalization, they are also putting in limitations on employers’ ability to discipline or refuse to hire employees based on their off-duty use of cannabis. Expect these statutes and their exceptions to be tested in the courts in 2023.

At-Will Employment. The New York City Council closed out the year with a proposed ordinance to significantly limit the at-will nature of the traditional employer-employee relationship. In general, the proposal calls for precluding employers from discharging any employee without “just cause” or a “bona fide economic reason”. In 2021, NYC already largely eliminated at-will employment for fast-food industry workers. In Philadelphia, car parking industry workers cannot be discharged without being provided progressive discipline first. Targeted or wholesale efforts to restructure employment at-will are likely to pick up steam in the year ahead.

On June 2, 2022, New York State jumped into the pay transparency fray by amending New York Labor Law and adding section 194-b which calls for “mandatory disclosure of compensation or range of compensation”.  The bill is currently awaiting New York Governor Kathy Hochul’s signature.  Per the language of the bill, the amendment becomes effective 270 days after it is signed.  As currently written, the amendment has very broad reach and applies to employers of four or more  employees in “any occupation, industry, trade, business or service.”  In any advertising or posting for a job, promotion or transfer opportunity, employers will be obligated to list the following:

• Compensation or a range of compensation, with range of compensation a defined term meaning  “salary or hourly range of compensation for a job, promotion, or transfer  opportunity that the employer in good faith believes to be accurate at the time of the posting of an advertisement for such opportunity”;
• Job description (if available), and
• A general description of other forms of compensation and benefits.

Similar to the New York City equivalent (guidance available here) there are record-keeping and posting requirements.  Further, employers are prohibited from refusing to interview, hire, promote, employer or otherwise retaliate against any applicant or current employee for exercising rights under the amendment.  The Department of Labor is tasked with promulgating regulations and spreading awareness of the new law.  Lastly, the NYS law explicitly does not supersede any local law, rules or regulation.  As a result, NY employers that are also subject to local pay transparency ordinances, e.g., NYC (eff. date November 2022), Westchester (eff. date November 6, 2022) and Ithaca (eff. date September 2022) should be mindful of any differences.

As with the NYC salary transparency law equivalent, there are some outstanding questions:  As written, the law applies whether the job descriptions are for remote or in-office work, so long as work can be performed by a New York State employee.  So, even employers with no physical presence in this state are seemingly subject to this law.  Additionally, the Business Council of New York State expressed concerns about the law’s application to businesses as small as four employees and has urged Governor Hochul to raise the threshold number of employees to lessen the burden on small businesses.

While we await further developments, New York employers of all sizes can take the following proactive steps to minimize their overall pay equity risk and otherwise prepare for this law:

• Create an organization-wide compensation philosophy
• Identify similarly-situated jobs 
• Audit regularly and correct disparities
• Review and revise job descriptions and advertisements as necessary to ensure that salaries and salary ranges are based on non-discriminatory bona fide job factors and qualifications, e.g., advanced degrees, etc.
• Review hiring and job offer practices (e.g., how compensation is negotiated, who gets to negotiate it, etc.)

As always, Woltz & Folkinshteyn, P.C. welcomes your questions about this and any other employment concerns that you may have.  

Under a recent amendment of the New York Human Rights Law, S.818B/A.2035B, effective July 14, 2022, the NYS Division of Human Rights established a toll-free confidential hotline to assist and counsel individuals with complaints about sexual harassment in the workplace.  The number for the hotline was released today, and is 1-800-427-2773 (1-800- HARASS-3). 

The hotline is staffed with pro bono attorneys affiliated with the New York State Bar Association and other attorney organizations.  

Notably, the amendment requires that information about the hotline be included in any materials employers must post or provide to employees regarding sexual harassment.  Thus, employers should update their sexual harassment training materials, workplace postings, and handbook policies or standalone sexual harassment policies with the hotline number.  Employers would also be wise to keep an eye out for additional posting requirements from the NY DOL or replacement posters containing the required information.  

If you have questions about this or other employment law inquiries, please contact us at HRLawyers@wfpclaw.com or www.wfpclaw.com.

On March 16, 2022, New York Governor Kathy Hochul signed into law three bills that affect the sexual harassment claim landscape in New York State.  Several additional laws are pending in the NYS Legislature and, if passed, will have additional consequences for employers’ defenses against sexual harassment and discrimination claims by NYS employees.

Bill No.	In Brief	Effective Date	Enacted
S5870	Amends existing law to prohibit release of an employee’s personnel file in retaliation for an employee’s complaints about employer’s discriminatory practices.	March 16, 2022	Yes
S812a	Creates a toll-free, confidential workplace sexual harassment hotline.  Requires employers to post and otherwise advise employees about the existence of this hotline in employer-provided materials.	July 14, 2022	Yes
S3295a	Amends New York Human Rights Law to apply to all public employees and officials, including any elected official, of the New York state executive, legislature, or judiciary, including persons serving in any judicial capacity, and persons serving on the staff of any elected official in New York State.	March 16, 2022	Yes
S738	Known as the Let Survivors Speak Act, this law would amend the General Obligation Law to prohibit settlement agreements in matters involving discrimination, harassment or retaliation from containing inter alia (1) non-disparagement or non-disclosure clauses, (2) clauses calling for forfeiture of all or part of consideration for violation of non-disclosure or non-disparagement clauses, or (3) clauses requiring any affirmative statement, assertion, or disclaimer by the complainant that the complainant was not in fact subject to unlawful discrimination, including discriminatory harassment, or retaliation.	Passed by Senate.  Not yet passed by Assembly.	No
S766	Amends General Obligations Law to prohibit releases or settlement agreements between employees (or general contractors) and employers to contain a “no rehire” clause.”  The amendment does not preclude anemployee and employer from agreeing to terminate an existing employment relationship as part of a settlement of a claim.	Passed by Senate.  Not yet passed by Assembly.	No
S566a	Extends the statute of limitations for administrative claims resulting from unlawful discriminatory practices to three years.	Passed by Senate. Not yet passed by Assembly.  Effective 90 days after enactment.	No
S849a	Extends the statute of limitations for harassment in the workplace to six years under the NYHRL.	Passed by Senate. Not yet passed by Assembly.  Effective 60 days after enactment.	No

The above collection of local legislative efforts significantly increases the costs of employee sexual harassment complaints for the employer in New York State. It also comes on the heels of a federal law passed in early March, know as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which limits the use of pre-dispute arbitration agreements and class action waivers covering claims of workplace sexual assault and sexual harassment.  This trend of increasing protections for employees victimized by sexual harassment and assault in the workplace sends a strong signal to business owners and human resources professionals to carefully audit their internal practices, business communications, and employee contracts. 

Next Steps

Employers should audit their current investigative practices concerning all allegations of sexual harassment in the workplace. They should ensure that appropriate protective measures are being taken during investigations, proper interview and documentation practices are being followed, and confidentiality, due process, and non-retaliation obligations are upheld. 

This trend of increasing protections for employees victimized by sexual harassment and assault in the workplace sends a strong signal to business owners and human resources professionals to carefully audit their internal practices, business communications, and employee contracts. 

Employers should also review and update any employee policies, handbooks, communications, and employee contracts, for prohibited waivers, obligations and representations concerning sexual harassment investigations and prohibitions.   This will include updating your sexual harassment training training materials, as well as reviewing your current sexual harassment policy, individual employee contracts, non-disclosure agreements, separation agreement templates, and any pre-employment arbitration agreements. 

As always, Woltz & Folkinshteyn, P.C. attorneys are here to help your organization’s policies and documents stay current with these and other new changes to the labor & employment landscape. 

Imagine this: You run a food delivery service. One day, you learn that a new operations consultant you recently contracted with to help with payroll has complained to the local health department and reported a suspected violation on your business.  Specifically, she has reported that the food your company produces and delivers to senior centers is contaminated.  Now you have a major PR problem on your hands. And, you’re angered that the consultant didn’t raise the issue internally before going public.  Moreover, you are sure the food your company produces is safe. Can you terminate your contract with her? 

Not so fast. 

Effective January 26, 2022, amendments to New York Labor Law § 740 significantly expand whistleblower laws in the workplace. Important changes include (1) expansion of the definition of “employee” and what constitutes protected activity, (2) elimination of certain employer notification provisions, (3) expansion of the definition of “retaliatory actions”, and (4) extension of the statute of limitations and inclusion of an entitlement to a jury trial, and (5) new posting requirements. Employers should familiarize themselves and train their managers in these expanded protections. The fast-changing employment law landscape, particularly with frequent issuance of executive orders at the local, state and federal levels, creates numerous pitfalls for employers in this area.

Employee, redefined

Pursuant to the recent amendments, whistleblower protections now extend not only to current employees, but also “former employees” as well as self-employed independent contractors who “work in furtherance of an employer’s business enterprise who are not themselves employers.”

What is Protected Activity?

The law now protects employees from retaliation by the employer where the employee discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of law, rule or regulation (including executive orders!) or is a substantial and specific danger to the public health or safety whether or not the complained-of violation is within the employee’s job duties. Whereas the pre-amendment statutory language specifically required actual violations of the law, an employee’s reasonable belief is now sufficient to trigger statutory whistleblower protections.

Additionally, the employee is also protected from retaliation if he or she provides information or testifies in a regulatory investigation, hearing or inquiry about an employer’s practices. Lastly, an employee is protected if he or she objects to participation in any activity, policy or practice of his or her employer.

Elimination of Employer Notification Provisions

Prior to the amendments, Section 740 of the Labor Law required that the employee actually notify the employer and give the employer a reasonable opportunity to cure any alleged wrongdoing. The statute is now amended in two significant ways:

• The employee is now required only to make a good faith effort to notify his or her employer before affording such employer an opportunity to correct;
• Employees are not required to make a good faith effort to notify where (1) there is an imminent and serious danger to the public health or safety, (2) employee reasonably believes that notification will result in destruction of evidence or concealment, (3) the activity could reasonably be expected to lead to endangering a minor, (4) employee reasonably believes that notification to supervisor would result in physical harm to employee or another person, (5) employee reasonably believes that employer is already aware of the complained activity and will not correct it.

What is Considered Retaliation?

A retaliatory action is now defined 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. This expanded definition covers the following broad categories:

• Adverse employment actions or threats, including, but not limited to, discharge, suspension or demotion;
• Actions or threats that would adversely impact a former employee’s current or future employment;
• Threats to contact or actual contacting of immigration authorities concerning employee’s suspected or actual citizenship status.

Expansion of Remedies

The statute of limitations for filing a civil claim under Section 740 has been extended to two years. Additionally, jury trials are available for claims thereunder as well as penalties up to $10,000.

Posting Requirements

Employers are now required to inform their employees about their rights under the Labor Law through conspicuous postings.

Three Steps Employers Should Take Now

• Review and, if necessary, revise your anti-retaliation and whistleblower policies.
• Train your managerial employees to recognize when issues raised by employees may touch upon the provisions of this law.
• Prepare appropriate postings to inform your employees about their rights under the law.