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.
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.
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.
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.
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.
Extends the statute of limitations for harassment in the workplace to sixyears under the NYHRL.
Passed by Senate. Not yet passed by Assembly. Effective 60 days after enactment.
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.
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.
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.
Leave administration can be an arduous undertaking with so many potentially overlapping leave benefits available to employees. Use the tool below to make leave administration analysis easier at your workplace. As always we are here for you if you have questions!
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 isretroactive 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 humandiscretionary 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.
With new vaccine and masking mandates happening almost every day (it seems), it is hard for employers to stay on top of these developments. Woltz & Folkinshteyn, P.C. has put together a handy informational cheat sheet for New York employers. As always we are here for you if you have questions or need help implementing these mandates at your workplace.
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.
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 orthreats, 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.
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.
On October 19, 2021, NY Department of Labor issued guidance concerning New York’s “lawful off duty conduct law,” Section 201-D of New York Labor Law, in light of NY’s recent legalization of marijuana under the Marijuana Regulation and Taxation Act (“MRTA”).
Generally, Section 201-D limits employers’ ability to take adverse action against employees who engage in certain statutorily defined “protected” activities, such as engagement in political speech, outside of the workplace. Among other things, the MRTA amended Section 201-D to include the legal use of cannibals and other lawful consumable products as protected activity under Section 201-D. In other words, NY employers are now prohibited from discriminating against employees based on the employee’s use of legal cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property. In contrast, the illegal use, sale, or transportation of cannabis is not protected by Section 201-D of the Labor Law.
However, Subsection 4-a of the law says that employees may still take adverse action against employees based on an employee’s use of cannabis where:
employer’s actions are otherwise required by state or federal law,
the employee is impaired by the use of cannabis, or
employer’s actions would result in the loss of a federal contract or federal funding.
The DOL’s guidance answers key several questions about how the MRTA’s amendments to Section 201D will impact the workplace, and what steps employers can take to discipline employees found to engage in marijuana use. The guidance specifically does not address the issues relating to medical use of cannabis.
An employer can take action against an employee if the employee is “impaired” by cannabis while working, meaning the employee manifests specific articulable symptoms of impairment that (1) decrease or lessen the performance of such employee, or (2) interfere with an employer’s obligation to provide a safe worksite as provided in occupational health and safety laws.
Articulable symptoms are defined as observable indications that the employee’s performance of duties is lessened or decreased. However, observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment. Thus, simply detecting cannabis odor standing alone is an insufficient predicate for disciplinary action.
Employers can prohibit cannabisuse at the workplace (or in a company vehicle) during work hours or on-call hours, including meal and break times, even where an employee otherwise leaves the worksite during “work hours”.
But, an employer cannot prohibit remote employees from using cannabis while working from home since the DOL does not consider a private residence as a “worksite”. However, an employee exhibiting the above-defined articulable symptoms of impairment can be disciplined.
Section 201-D does not apply to remote employees working out-of-state.
Employers cannot prohibit the use of cannabis outside of the workplace absent the limitations of Subsection 4-a discussed above. Similarly, employers cannot ask their employees to waive the protections of Section 201-D nor keep the existing cannabis use prohibitions in place.
Lastly, employers cannot test their employees for cannabis use unless otherwise authorized to do so under Subsection 4-a or other applicable laws, e.g., mandatory testing for drivers of commercial motor vehicles under 49 CFR Part 382.
Employers should review and amend discipline policies which discipline employees who use legal cannabis recreationally outside of work hours, absent separate state or federal authority to do so.
Employers should review their existing workplace policies such as drug-free workplace policies, attire and grooming standards, and safety policies, among others, to reflect the protections for recreational cannabis use pursuant to Section 201-D.
Employers should train managers and HR staff on recognizing, reporting, and documenting articulable symptoms of impairment and remember that cannabis odor alone is not a sufficient basis for discipline. Further, employers should be aware that the defined articulable signs of impairment due to cannabis use may also be an indication that an employee has a disability protected by federal and state law, which could give rise to a duty to engage in an interactive dialogue and potentially offer reasonable accommodations.
Lastly, the guidance specifically did not address medicinal cannabis use. Employers who are considering taking adverse action against an employee in connection with his or her use of medicinal cannabis use, or need guidance on offering accommodations to medical cannabis users,should consult with an employment attorney.
As always, Woltz & Folkinshteyn, P.C. welcomes your questions about this and any other employment concerns that you may have.
While many courts have so far rejected vaccine mandate challenges, yesterday’s decision out of New York reverses that trend. Judge David Hurd of the Northern District of New York in Dr. A, et al. v. Hochul, 1:21-cv-01009-DNH-ML, issued a preliminaryinjunction yesterday, enjoining the NY Department of Health from enforcing the challenged emergency regulation § 2.61(c) which required most health care workers to be vaccinated against COVID-19 without accommodating employees’ religious beliefs.
The named plaintiffs, proceeding pseudonymously, challenged the mandate on religious discrimination grounds. As stated in the Complaint, the Plaintiffs “hold the sincere religious belief that they cannot consent to be inoculated . . . with vaccines that were tested, developed or produced with fetal cell[ ] line[s] derived from procured abortions.” (internal citations omitted). The court concluded that Section 2.61 was pre-empted by Title VII’s, prohibitions of employment discrimination on the basis of religion. The holding, in relevant part, reads as follows:
“Defendants, their officers, agents, employees, attorneys and successors in office, and all other persons in active concert or participation with them, are preliminarily ENJOINED from enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with § 2.61 [that required most healthcare workers to be vaccinated against COVID-19 within thirty days] such that: … Section 2.61 is suspended in operation to the extent that the Department of Health is barred from enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination or that they revoke any exemptions employers already granted before § 2.61 issued[.]”
NY Governor Hochul has signaled that the state intends to appeal this decision and that she “stands behind [the healthcare workers’ vaccination] mandate.” However, ultimately, the state may end up allowing for religious exemptions under this emergency order, while otherwise remaining aggressive in pursuing vaccination mandates through a variety of carrot-and-stick approaches.