“Wingardium . . . Leviosa!“

“Stop, stop, stop . . . You’re going to take someone’s eye out. Besides, you’re saying it wrong. It’s LeviOsa, not LevioSA.”

J.K. Rowling, “Harry Potter and the Sorcerer’s Stone”

In the world of Human Resources, listening isn’t just a soft skill — it’s a concrete one with potential legal ramifications. Employees don’t always use the precise legal terminology that lawyers or handbooks use. Yet, the words they do say — or sometimes don’t say — can trigger important legal obligations for employers. Understanding these “magic words” is essential for preventing risk and fostering a compliant, respectful workplace.

When Words Sound Legal (But Aren’t)

Employees may use charged terms like “harassment,” “hostile environment,” or “discrimination” when they’re frustrated or unhappy — even when the underlying situation doesn’t meet the legal definition of a hostile work environment or discriminatory conduct. HR professionals shouldn’t dismiss these words out of hand, but they should dig deeper. What does the employee actually mean? Where are these concerns or frustrations coming from? Is this an issue arising from poor communication, a misunderstanding of expectations or perceived unfair treatment? The use of these words by an employee should prompt careful inquiry and documentation, not defensiveness, regardless of the initial perceived nature of the complaint.

When Ordinary Words Have Legal Implications

On the flip side, employees often describe situations with ordinary language that carries extraordinary legal significance:

• “I need time off to take care of my mom” may implicate the FMLA.
• “I’m having trouble with my anxiety” may signal the need for a reasonable accommodation under the ADA.
• “I’m pregnant and my doctor says I need to rest” could trigger obligations under pregnancy accommodation laws.

Employees rarely say “I’m invoking my rights under the ADA.” HR professionals need to understanding the the legal meaning even when the words themselves aren’t legalese.

Listening Between the Lines

The best HR professionals are part investigators, part translators, and always human. They listen for the story beneath the words — whether it’s a misunderstanding that can be resolved with communication, or a potential legal issue that needs immediate attention. Training HR staff to recognize these “magic words” — in all their forms — helps prevent small issues from becoming big problems.

In short, being in HR means listening not just to what’s said, but to what’s meant. Because in employment law, the magic is in the meaning.

* * *

As always, Woltz & Folkinshteyn, P.C. attorneys are here to help and to translate what your employees are saying. We welcome your questions about any employment issues that you may have.

Have you heard the one about how an updated handbook could have saved the client $1M? Recently, one of our clients was hit with almost $1M in back pay, penalties, and fines by a city regulator. The “crime”? Failing to provide sick leave to their part time employees.

The kicker? The client actually had been providing sick leave to many of its part-time employees. But:

• Their sick time policy was outdated and didn’t facially include part-time employees;
• Their handbook never provided employees a required sick time notice as required by law;
• Managers failed to keep accessible, readable records showing when sick time had actually been provided;
• Their pay stubs didn’t show sick time accrued, taken, or available, as required by law;
• One part time employee had an email between him and my client’s (long gone) HR administrator where she (quoting the outdated handbook) said part-time employees were not eligible for sick time.

Luckily, our client had kept other records that demonstrated some legal compliance, and we were able to use these to reduce the client’s liability significantly. But not to $0. The absence of key policies and notices was enough to establish “pattern and practice” violations, over “individual/idiosyncratic” violation of the law, and thus larger penalties were imposed.

The key lessons?

• Handbooks and on-boarding packets are not just a collection of policies and new hire forms – they can be your future legal defenses to claims made by employees and the agencies that act on their behalf.
• Manager (and HR) training on record-keeping and compliance – and supervisory oversight that ensures records are accessible when managers leave – is critical. It’s not enough that your policies are “right.” Your day-to-day practices must also be “right.”
• Do not leave payroll notification compliance to your payroll providers. Ultimately, employers are responsible for the information on the pay stubs they provide to employees, and payroll providers do not always get it right.
• It is worth a small investment to keep these critical HR communications, documents, and procedures current and compliant with relevant law. This client would have spent less in legal fees by updating its handbook and auditing its new hire packet a year ago, than it spent to hire me to negotiate the civil fines and penalties imposed by the regulator. And it would have avoided the fines/penalties that we couldn’t negotiate away. Kicking the can down the road can only be a strategy for a limited time before the risks outpace the rewards.

As they say, “a stitch in time saves nine.” Unfortunately, this client had to learn that lesson the hard way.

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 and employment landscape. We welcome your questions about any employment issues that you may have.

Effective July 2, 2025, the New York City Department of Consumer and Worker Protection (“DCWP”) is amending rules related to the Earned Safe and Sick Time Act (“ESSTA”).

The ESSTA requires employers in New York City to provide each employee up to 40 or 56 hours of accrued safe/sick time each calendar year. Section 196-b of the Labor Law similarly requires that employers provide each employee in each calendar year up to 40 or 56 hours of sick leave. Additionally, effective January 1, 2025, Section 196-b of the Labor Law was amended to require that every employer provide its employees twenty hours of paid prenatal personal leave during any 52-week calendar period. This paid prenatal leave requirement is in addition to the accrued sick leave every employer must provide to its employees each calendar year.

These rule amendments incorporate into ESSTA by reference the paid prenatal leave requirements set forth in Section 196-b of the Labor Law. Among the various requirements of the rule amendments the following are of note:

• Employers must provide a benefit of 20 hours of paid prenatal leave during any 52-week calendar period in addition to the up to 40 or 56 hours of safe/sick time employers must provide each calendar year.
• An employer is not permitted to require an employee to use other leave in lieu of paid prenatal leave, exhaust other leave before using paid prenatal leave, or use or exhaust paid prenatal leave before using other leave.
• An employer may not request or require that an employee disclose their medical condition or the nature of the health care services as a condition of providing paid prenatal leave.
• Upon mutual consent of the employee and the employer, an employee’s schedule may be changed in lieu of using paid prenatal leave. However, an employer may not require an employee, as a condition of taking paid prenatal leave, to work additional hours to make up for the original hours for which such employee used paid prenatal leave or to search for or find a replacement employee to cover the hours during which the employee uses paid prenatal leave.

The rule amendments also include certain notice and disclosure requirements as follows:

• For each pay period where an employee uses paid prenatal leave, the employer must inform the employee of the of the amount of paid prenatal leave used during the relevant pay period and the total balance of paid prenatal leave available for use, either on the pay statement or in separate written documentation.
• Employers must also maintain, in an accessible format, contemporaneous, true, and accurate records that show this information for each employee for each pay period.
• Employers to ensure their paid prenatal leave policy includes the availability of a separate bank of 20 hours of paid prenatal leave during any 52-week calendar period.
• The rule amendments provide that employers may take disciplinary action against an employee who uses paid prenatal leave for purposes other than those described in Section 196-b(4-a) of the Labor Law.

An employee seeking relief for alleged violations of the ESSTA may be entitled to:

• The full amount of any underpayment of wages, with interest; (2) liquidated damages up to 100% of the unpaid wages, unless the employer has a good faith basis for the underpayment; and (3) for prohibited retaliation, all appropriate relief, including injunctive relief, liquidated damages not more than $20,000, rehiring or reinstatement and an award of lost compensation, or an award of front pay in lieu of reinstatement and an award of lost compensation.
• An employer is liable for penalties, including, but not limited to: (1) for prohibited retaliation, a civil penalty of not less than $1,000 nor more than $10,000; and (2) for underpayment of wages, a civil penalty of $500 for each failure to pay wages owed.

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 and employment landscape. We welcome your questions about any employment issues that you may have.

On September 4^th, 2024, Governor Kathy Hochul signed into law the Retail Worker Safety Act. This law requires covered retail employers to (1) adopt a written retail workplace violence prevention policy; (2) meet certain training requirements; and (3) install panic buttons throughout the workplace.  The law goes into effect on March 3, 2025.  

Who is a Covered Retail Employer?

A covered employer is any entity or person that employs at least 10 retail employees at a retail store, which is defined as a store that “sells consumer commodities at retail and which is not primarily engaged in the sale of food for consumption on the premises.

What is a Violence Prevention Policy?

The NY Department of Labor (“DOL”) is expected to issue a model policy and accompanying training modules before the effective date.  Employers can choose to adopt the model policy or promulgate its own, provided that it is equal to or exceeds the issued DOL standards.  The policy must at minimum:

• Outline a list of examples in the workplace where retail employees may face a risk of workplace violence (including, but not limited to, working late night or early morning hours, working alone or in small numbers, or exchanging money with the public). 
• Outline ways employers can prevent incidents of workplace violence, including the establishment of an internal reporting system. 
• Include information on federal and state laws that protect retail workers from workplace violence, available remedies for victims, and note the possibility of relevant local laws. 
• Clearly state that retaliation against individuals who report workplace violence, risk factors, or assist in legal proceedings is unlawful. 

What Must the Training Cover?

The training provided for under this act must at minimum be within the following parameters:

• The training must be interactive;
• Must provide information on the Retail Worker Safety Act;
• Include examples of ways retail employees can use to protect themselves when faced with workplace violence;
• Cover de-escalation tactics; active shooter drills; emergency procedures; 
• Instruction on the use of security alarms, panic buttons, and other emergency devices; and
• Contain a site-specific list of emergency exits.

Requirement for Panic Button Access

All employers with 500 or more retail employees nationwide are required to provide access to panic buttons throughout the workspace by January 1, 2027. Panic buttons must directly contact the local emergency services and relay the employee’s location for law enforcement dispatch.

Employers can either install panic buttons in easily accessible locations in the workplace or provide all employees with wearable or mobile phone-based panic buttons. If wearable or mobile-phone based, it may only be installed on employer-provided equipment and cannot be used to track an employee’s location, except upon triggering.

With the effective date still several months away, covered employers are in a good position to assess their risk profiles and potential challenges with implementation, prepare for DOL guidance and assess feasibility, costs, and placement of required panic button equipment.

*  *  *

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 and employment landscape. We welcome your questions about any employment issues that you may have.

Effective October 1, 2024, Connecticut’s Family Victim Violence Leave Act amendments now require employers to provide leave for victims of sexual assault in addition to already existing protections for victims of family violence. This Act requires employers who have 3 or more employees to provide employees, who are victims of family violence or sexual assault, up to 12 days of leave under CT’s Paid Leave Program during any calendar year, in addition to other paid or unpaid leaves available to employees.  

Such leave can be used if it is reasonably necessary to seek medical care or counseling, obtain victim services, relocate because of family violence, or participate in any legal proceeding stemming from such violence.  Family members include spouses or former spouses, parents and their children, blood relatives, relatives from marriages, people who have or are living together, people who have a child together, and people who are dating. 

An employer may (but need not) require the employee to provide a signed written statement stating that the leave is for a legally authorized purpose. Employers may  (but need not) also require additional documentation such as a police report, a court record, or a written statement that the employee is a victim of family violence from a member of a victim services organization, an attorney, or licensed medical professional. This documentation must be kept confidential, unless otherwise required by state or federal law. 

In addition, CT employers should be aware that the paid sick leave law has been recently amended to lower the threshold for its application.  Currently, CT paid sick leave law applies to employers who employ at least 50 employees within the state.  On January 1, 2025, that threshold drops to 25 or more employees in the state, then to 11 employees in January 1, 2026, and then to one or more employees in January 1, 2027.

Action Items for CT Employers:

• Review and update family violence and sexual assault victim leave policies in employee handbooks;
• Update Paid Family Benefits Leave policy and practice;
• Train managers and HR staff to recognize and respond to requests for leave that may fall into this new category. 

*  *  *

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 and employment landscape. We welcome your questions about any employment issues that you may have.

Frank Sinatra dubbed New York City as “the city that never sleeps”, but he could just as easily have been speaking about its lawmakers.  With the recent flurry of new laws, regulations, and other guidance surrounding workplace obligations that have emerged in the past few weeks, savvy New York employers cannot afford to fall behind the times.  Here, are FIVE THINGS that New York City and New York State employers should focus on now to stay in compliance with these new changes:

1. Update your Lactation Accommodation Policies

Effective June 19, 2024, New York employers will be required to offer paid break time of up to 30 minutes each time an employee needs to express milk for a nursing child.  Previously, employers were required only to offer “reasonable” unpaid break time. 

Employers should review and revise existing lactation accommodation/break time policies and distribute them to staff. Further, when and if the NY Department of Labor issues a new lactation accommodation policy (which is currently itself required to be distributed to employees) to reflect the changed law, employers should distribute the DOL-drafted notice as well. Importantly, employees should be provided with a written policy regarding the rights of nursing employees at time of hire, annually, and upon an employee’s return to work following the birth of a child. 

2. Audit Your Workforce for Exempt Employees Making Less than $43,888/year

Effective July 1, 2024, The Fair Labor Standards Act’s minimum salary threshold for exempt executive, administrative and professional employees will rise from $684 a week ($35,568/yr) to $844/week ($43,888/yr). 

In New York, executive and administrative employees are already required to have salaries equal to or greater than $58,458.40 upstate, and $62,400 in NYC, Nassau, Suffolk and Westchester counties.  Thus, Executive and Administrative employees in New York should largely be unaffected by this change.  However, most employees exempt under the Professional exemption are not required to maintain a salary threshold greater than the floor set by the FLSA of $684/wk/$35,568/yr. 

Thus, any employees previously classified as exempt under the Professional exemption making less than $43,888/year may need to be given a pay raise to meet the threshold or reclassified as non-exempt. The decision of whether to attempt to maintain/justify the exemption or communicate a reclassification can involve numerous legal, morale, communications, compression, and budgetary considerations. 

Moreover, a second raise to the minimum salary threshold for exempt Executive, Administrative and Professional employees under the FLSA is set to take place on January 1, 2025, when the new threshold will increase to $1,128/wk ($58,656/yr). The time to begin planning for these changes is now. 

3. Distribute NYC’s Worker’s Bill of Rights Notice

Effective July 1, all NYC employees must be provided with a notice informing them of their rights under NYC law, as issued by the NYC Department of Consumer and Worker Protection. 

In addition to providing employees with a copy of this notice, the notice must also be posted prominently in the physical workplace, and must be made available on any online platform used to communicate with employees, such as a company intranet. 

4. Inform Your Employees About NYC’s Temporary Schedule Change Law

Effective March 4, employers were required to inform employees of their rights under NYC’s Temporary Schedule Change Law and distribute “written and electronic materials” about employees’ rights under this law. Many employers may have already been fulfilling this requirement through a compliant policy in their handbook. 

Several new requirements, however, now require that employers (i) post a specific notice of these rights in the workplace, (ii) distribute the poster in writing, and (iii) distribute the poster electronically.  It is suggested that this notice be included in an employee handbook. Additionally, this notice must be distributed in English and in any language that is the primary language(s) of 5% or more of the workforce if available on the DCWPA’s website. Notably, “minority” languages can be aggregated to get to 5%!

5. Prepare Now for NY Paid Prenatal Personal Leave

Effective January 1, 2025, New York will require all employers to provide up to 20 hours of paid leave (which can be taken in hourly increments) for health care services related to an employee’s pregnancy. The paid prenatal personal leave will be in addition to existing sick time obligations. However, the law is currently unclear or silent in several respects, such as whether employers can fulfill the obligation to provide paid parental personal leave through providing an equivalent amount of PTO, and what an employer’s rights are regarding suspected fraud or abuse. Finally, the law is also unclear regarding the rights of spouses/partners to attend their spouse/partners medical appointments. It can be expected that the NY DOL will issue guidance in the coming weeks and months regarding this and other questions about this new employee benefit.

With 2024 so quickly upon us, time has come again to look at forthcoming New York employment law developments and to prepare for the year ahead.  While there are some important changes coming up in the next 12 months, non-compete agreements are still alive and kicking in New York State.  In a Christmas gift to the bill’s detractors, on December 22, 2023, Governor Kathy Hochul vetoed legislation that would have banned most non-compete agreements in the state.  While it is unlikely that the NYS Legislature is done with its efforts to curtail the use of non-competes, these types of agreements live to see another day for now.  Employers should be well-advised to consider alternatives to these agreements in order to avoid complications in the future.  

But now, let’s look at some important changes . . .

Freelance Isn’t Free Act

The amendments to NY Labor Law dubbed the “Freelance Isn’t Free Act” (the “Act”) are slated to take effect on May 20, 2024.  The Act (which is modeled after NYC’s version of the law) is set to provide a number of key protections to freelance workers statewide.  In essence, the Act requires that any contract between a business and a freelance worker (as defined in the Act) must be reduced to a writing (i.e., a contract) that contains statutorily mandated language, including rate of pay, services to be performed and payment provisions that specify payment dates and invoice submission provisions.  The Act applies to any exchange of services (with certain exceptions) that either exceeds $800 on its own or in the aggregate over the preceding 120 days.  

The Act can be enforced through a private right of action; a freelance worker plaintiff may be entitled to recover certain statutory damages, double damages, injunctive relief and attorney fees among other remedies.   The Act requires the NYS Department of Labor to publish model contracts for use by the general public prior to the effective date.

Extended Statutes of Limitations under the NYSHRL

Section 297 of the NY Executive Law was amended to extend certain statutes of limitations.   As a result, for all claims arising on or after February 15, 2024, the statute of limitations to file a charge containing claims of unlawful discriminatory practice or retaliation with the New York State Division of Human Rights (NYSDHR) will be three years.  

Prior to these amendments, the statute of limitations for such claims was one year; only claims of sexual harassment carried a three-year statute of limitations.

Criminal Penalties for Wage Theft

As of September 2023, New York State has authorized prosecutors to pursue criminal charges against NY employers for wage theft.  The law amends the definition of larceny to include such theft and “a person obtains property by wage theft when he agrees to hire a person to perform services and the person performs such services and the defendant withholds such wages from said person.”

Electronic Communications and Personal Accounts

By March 12, 2024, NY employers should ensure that their communications and electronic devices policies comply with the recently passed amendments to NY Labor Law, which prohibits requesting or requiring username and login information for employees’ and potential applicants’ personal accounts.  Employers are still allowed to request and/or require disclosure of login information for personal accounts that are to be used for business purposes as well as for employer-provided accounts provided by the employer.  Similarly, employers are permitted to access non-personal accounts on employer-provided electronic devices.  Employers must provide notice to employees of the employers’ rights to access information as permitted under the law.  

Importantly, the new amendments do not prohibit an employer from “accessing or utilizing information about an employee or applicant that can be obtained without any required access information, that is available in the public domain, or for the purposes of obtaining reports of misconduct or investigating misconduct  . . . that is voluntarily shared by an employee[.]”

Clerical Workers, Redefined

Taking effect on March 13, 2024, NY Labor Law increases the salary threshold for employees in the “clerical and other workers” category from $900 per week to $1,300 per week.  Currently, “clerical and other workers” include “all employees not included in [other subdivisions], except any person employed in a bona fide executive, administrative or professional capacity whose earnings are in excess of nine hundred dollars a week.”

With the increased minimum salary threshold amount, more employees would now fit into this category and will need to be compensated on a semi-monthly basis and be provided written consent before being paid wages via direct deposit in advance as well as afforded certain other statutory protections.  

The next post will focus on the newly finalized independent contractor rule slated to go into effect on March 11, 2024.

*  *  *

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 and employment landscape.  We welcome your questions about any employment issues that you may have. 

Woltz & Folkinshteyn, P.C. had a great time speaking with Maureen Wiley Clough on her podcast It Gets Late Early about U.S. age discrimination laws. Listen, comment and ask questions!

On October 1, 2023, Connecticut’s Paid Sick Leave expands to permit two additional forms of use. Among other permitted uses, covered employees will be able to take paid sick time for (i) mental health wellness days – defined as a day to attend to a workers “emotional and psychological well-being in lieu of attending a regularly scheduled shift”, and (ii) to care for an employee’s child who is the victim of family violence or sexual assault, so long as the employee is not the actual or alleged perpetrator. 

Governor Ned Lamont signed the new law, S.B. 2, into legislation on June 26, 2023. Connecticut’s current sick leave law (codified at Connecticut General Statutes 31-57s) covers most employers with more than 50 employees within Connecticut. The law requires employers to permit accrual, rollover and use of up to 40 hours a year of paid sick leave for “service workers” — a category that applies to many – but not all – hourly, non-exempt employees.  Employers may comply with CT’s sick leave requirements by providing employees with alternative paid time off (e.g., vacation), so long as the time off meets or exceeds all the requirements of the sick leave law. Employers have just under three months to prepare for the effective date of this new law. 

Action Items for CT Employers:

• review and update and distribute existing sick leave and other time off policies and procedures, and
• train managers and HR staff to recognize and respond to requests for leave that fall into these new categories of permitted and protected use. 

UPDATE (June 27, 2023): Since the original post, the New York State bill passed the NYS Assembly and is currently awaiting Governor Hochul’s signature.

---

It is hard to be a non-compete agreement (“NCA”) in 2023.  It seems like every week another regulatory body or state legislature comes out against this long-standing tool in the employer-employee relationship.  Just in the past few months, the Federal Trade Commission (“FTC”), the National Labor Relations Bureau (“NLRB”) and New York State have all come out against non-compete agreements in one way or another.

• In January 2023, the FTC announced a proposed rule that would essentially ban all non-compete agreements with retroactive effect.  The last day to comment on the proposal was April 19, 2023.  Although non-solicit agreements are not specifically covered, under the proposed definition of “non-compete clause,” non-solicits would be considered non-compete clauses “where they are so unusually broad in scope that they function as such.”
• The New York State legislature is considering amendments to New York Labor Law to similarly ban non-competes, though without retroactive effect.  There appears to be language in this proposed legislation that carves out non-solicitation agreements from the ban.
• And to top it off, just at the end of May 2023, NLRB’s General Counsel came out with a memo opining that non-compete agreements may  violate Section 7 of the NLRA.  This memo also expresses a negative view of non-solicitation agreements as violative of employees’ rights regarding concerted activity.

The headwinds against NCAs in other jurisdictions have already been blowing strong for some time. By way of example: 

• Indiana banned non-competes for certain medical professionals effective July 1, 2023;
• Washington, D.C. banned non-competes for most employees who make less than $150,000.00 or physicians who make less than $250,000.00;
• California has generally banned non-competes outright;
• A number of states, including Colorado and Illinois, prohibit NCAs for employees below a certain salary threshold.
• In Connecticut, proposed legislation would restrict the use of NCAs unless they meet certain strict requirements, be no longer than one year in duration and apply to exempt employees only.  

What’s An Employer to Do?

• As things stand now, many jurisdictions (including NY) still enforce non-competes so long as they are reasonable in geographic scope, length, and narrowly drafted to protect a protectable interest of the employer.  Employers who have not had legal counsel review existing NCAs recently should review their language to ensure that the prohibitions are likely to be enforced by a Court if challenged.
• Although it is still unclear which way the questions regarding non-solicitation agreements will play out, the current legislative and regulatory efforts seem to recognize that non-solicits are different from non-competes and can be a legitimate tool when narrowly tailored. Thus, employers should also review their non-solicitation agreement practices and tailor them accordingly to replace, if possible, the use of non-compete prohibitions. 
• Non-disclosure agreements (“NDAs”) are still permitted as a tool to limit disclosure of proprietary business or trade secret information. However, NDAs cannot be so overbroad as to prohibit the disclosure of information that would prevent the employee from participating in an EEOC or other government regulatory investigation, chill potential Section 7 activities, or limit the ability of most employees to share compensation information with others. Additionally, there are limits to their use in certain circumstances, typically involving settling or resolving claims of sexual harassment and assault.  Similarly, NDAs should not be so broad as to make NDAs virtually indistinguishable from non-competes, functionally.  Employers should ensure that existing NDAs do no more than necessary to protect legitimate proprietary information from disclosure by departing employees.
• Employers may also want to consider alternatives to NCAs, such as offering paid “garden leave” during a would-be period of restriction, or a “forfeiture for competition” arrangement.

As always, all of these options should not be considered in a vacuum, but reviewed and considered in consultation with your business stakeholders and legal counsel.

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