Today’s New York employment law landscape is increasingly dynamic, with a constant stream of newly issued legislation and judicial opinions. To keep our readers current on the latest developments, we will share regular summaries of recent developments affecting Empire State employers. Here’s what happened in October and November 2015:

NYC Agency Issues Guidance on New Criminal Background Check Law

As we previously reported, a new law took effect in NYC on October 27 that, subject to a few narrow exemptions, bars employers from inquiring about a job applicant’s pending arrest or criminal conviction record before a conditional offer of employment is extended (the Law). On November 5, just days after the Law took effect, the NYC Commission on Human Rights (NYCCHR) – the agency tasked with enforcing the Law – issued interpretive guidance on it. The guidance clarifies some of the Law’s inherent ambiguities, but also seems to expand its protections.

After briefly explaining the legislative intent behind the Law, the guidance, which can be found here, quickly turns to a discussion of per se violations of the Law. As indicated in bold below, the guidance adds important qualifier clauses to such violations, which include “declaring, printing, or circulating . . . any solicitation, advertisement, or publication for employment that states any limitation or specification regarding criminal history, even if no adverse action follows” and “[m]aking any statement or inquiry [regarding an individual’s criminal history] . . . before a conditional offer of employment, even if no adverse action follows.” The guidance then provides detailed analyses of those actions that employers can and, just as importantly, cannot take both before and after extending a conditional offer of employment, as well as of the Law’s narrow exemptions.

Of particular interest is the guidance’s suggestion that the Law’s protections apply not only to job applicants, but also to existing employees. Under that interpretation, an employer would have to follow the Law’s procedures if, for instance, the employer intends to run a criminal background check on an employee being considered for a promotion. Until the NYCCHR offers further clarification and/or the courts rule on the scope of the Law’s protections, employers should consider erring on the side of caution and applying the Law broadly when performing criminal background checks on both prospective and current employees.

Finally, the NYCCHR has also issued a Fair Chance Notice that employers should use before taking any adverse employment action based on information discovered during a post-offer background check.  A copy of the Notice can be found here.

Cuomo Expands Anti-Discrimination Protections to Transgender Individuals

Although NYC law has long protected the rights of transgender workers, state law has lagged behind. That changed on October 23, when Gov. Andrew Cuomo circumvented a divided legislature and issued an executive order (the Order) expanding the state’s anti-discrimination law to ban discrimination and harassment based on transgender status, gender identity, and gender dysphoria.  Although regulations from the New York State Division of Human Rights to effectuate the governor’s mandate likely will not take effect until late 2015 or early 2016, employers should, in the interim, review their handbooks to ensure compliance with the expanded protections the Order prescribes.

NYC Creates an Office of Labor Standards

On November 30, NYC Mayor Bill de Blasio signed into law a bill creating an Office of Labor Standards (the Office). Among other things, the Office will:

  • Plan, make recommendations, conduct research, and develop programs for workers’ education, safety, and protection
  • Facilitate the exchange and dissemination of information in consultation with city agencies, federal and state officials, businesses, employees, and nonprofit organizations working in the field of worker education, safety, and protection
  • Provide educational materials to employers and develop programs, including administrative support, to assist employers in complying with labor laws
  • Implement public education campaigns to heighten awareness of employee rights under federal, state, and local laws
  • Collect and analyze available federal, state, and local data on the city’s workforce and workplaces to identify gaps and prioritize areas for improving city employees’ working conditions and practices within particular industries
  • Recommend efforts to achieve workplace equity for women, communities of color, immigrants and refugees, and other vulnerable workers

Once the law takes effect on March 29, 2016, the Office will, at least in the beginning, administer and enforce NYC’s existing paid sick leave law and its commuter benefits law (which takes effect on January 1, 2016). The mayor is also expected, in early 2016, to identify the city agency under which the new Office will operate.

Cuomo Extends Wage Deduction Law for Another Three Years

Just as it was set to expire, Gov. Cuomo extended for an additional three years a 2012 law that significantly expanded the list of permissible deductions from employees’ wages. The list includes deductions for transit benefits, health club dues, day-care expenses, and other payments intended to benefit employees, as well as for overpayments and advances of wages under certain circumstances.  The 2012 law, which had been set to expire on November 6, 2015, now will expire on November 6, 2018 (unless the legislature again acts to renew it).

What’s the Takeaway for My Company?

The New York employment law landscape is as vibrant as ever. Employers statewide should brace for a slew of changes in the next year – if not in the next few months – that could dramatically impact their operations and workplace policies. It is more important than ever for employers to stay in regular contact with experienced counsel to discuss these issues and to prepare a cogent plan of action to face the ever-changing legal standards head-on.