New York State and City legislators have enacted a flurry of new workplace-related regulations in the past few years. The new laws touch upon everything from high-profile issues like sexual harassment prevention and paid family leave, to seemingly more mundane matters like paid time off to vote. With this bustle of legislative activity, it is entirely possible that one or more of the new laws flew under your radar. With that in mind, we want to flag some of the more important New York State and City legislative developments from the past few years (with corresponding links to our prior posts on these topics):
New York State
Sexual Harassment Prevention
- Annual Training and Written Policy Requirements: Employers must provide employees with annual sexual harassment prevention training that meets or exceeds the content of the model sexual harassment prevention training program published by State regulators. Employers must also implement a written sexual harassment prevention policy that meets or exceeds the content of a model sexual harassment prevention policy also published by the regulators.
- Ban on Non-Disclosure Agreements: Unless it is the employee-complainant’s preference, severance and settlement agreements – where the complainant has raised allegations of sexual harassment – may not include confidentiality clauses. If the employee-complainant prefers the inclusion of such a clause, the law then requires a 21-day consideration period and a 7-day revocation period, akin to the requirement for valid waivers of federal age discrimination claims. Notably, however, unlike the federal age discrimination law, the 21-day consideration period cannot be shortened.
- Ban on Arbitration: Employers are prohibited from mandating that employees submit sexual harassment claims to arbitration (although this law may be preempted by the Federal Arbitration Act).
- Protections Extended to Independent Contractors: The provisions of New York State’s anti-discrimination law prohibiting sexual harassment now also cover and protect non-employees, including independent contractors, vendors, and sub-contractors.
Wage and Hour
- Minimum Wage, and Exempt Salary Threshold, Increases: Employers must pay non-exempt employees in accordance with the new rate schedule, which has varying minimum wage rates, and exempt employee salary thresholds (for executive and administrative employees), depending on the size of the employer and location within the State.
- Paid Family Leave: For 2019, employees who have worked for an employer for at least six months may take up to ten weeks of paid leave for a variety of family-related reasons, including bonding with a new child, taking care of family obligations when a family member is called to active military duty, and assisting a family member who has a serious health condition. The number of weeks of permissible leave will increase until 2021, when employees will be allowed to take a maximum of 12 weeks of leave. The benefit amount paid to employees will also increase every year until 2021.
- Increase in Paid Voting Time: Employers must provide employees with up to three hours of paid time off to vote.
New York City
Hiring and Firing
- Ban on Marijuana Testing: Effective May 10, 2020, NYC employers will, subject to a few narrow exceptions, no longer be permitted to drug test job applicants for marijuana use.
- Ban on Salary History Inquiries: City employers are prohibited from inquiring about a job applicant’s salary history.
- Restrictive Independent Contractor Rules: NYC’s “Freelance Isn’t Free” Act expands protections for most independent contractors, including requiring written independent contractor agreements, providing deadlines for payment of consulting/contractor fees, extending protections against retaliation and discrimination to freelancers, and providing a cause of action to sue the hiring party.
- Ban on No-Cause Firings in the Fast Food Industry (pending): NYC fast food businesses may soon be barred from firing employees without “just cause.”
Sexual Harassment Prevention
- NYC passed numerous laws concerning sexual harassment in the workplace, including that:
- Businesses with more than 15 employees must provide annual sexual harassment prevention training that meets certain minimum standards set by City law. Interestingly (particularly for multi-jurisdictional employers), the NYC Commission on Human Rights takes the position that any individual who “interacts with employees in New York City, even if they’re based elsewhere, must be trained.”
- An information sheet concerning sexual harassment must be distributed to all new hires (can be included in an employee handbook), and a sexual harassment poster must be displayed in the workplace.
- Employers of all sizes are now subject to City anti-discrimination law in the context of gender-based harassment claims (previously, the law only applied to businesses with four or more employees)
Wage and Hour
- Temporary Schedule Changes: Employers must accommodate employees’ requests for a temporary schedule change up to two times each calendar year, related to a qualifying “personal event,” as defined under the law. The allowable temporary schedule change requests can last no longer than one business day. Paid time off, working remotely, changing work hours, and unpaid leave are all within the scope of the protected schedule changes.
- Expansion of Paid Sick Leave Law to Include “Safe Time”: The City’s paid sick leave law has been expanded to required employers with five or more employees to provide paid “safe time” for employees to either care for themselves or a family member who is a victim of domestic violence, unwanted sexual contact, stalking, or human trafficking. If an employer has four or less employees, they must allow unpaid leave.
- Paid Vacation (pending): NYC employers may soon be required to provide employees with up to 10 days of paid vacation per year.
- Expanded Protected Classes: The NYC Human Rights Law has been amended to protect employees from discrimination or harassment on the basis of the individual’s sexual and reproductive health decisions. In addition, the definitions of “sexual orientation” and “gender,” in the context of the City’s anti-discrimination law, have been expanded. Sexual orientation discrimination now includes an “individual’s actual or perceived romantic, physical, or sexual attraction to other persons, or lack thereof on the basis of gender,” in contrast from the law’s former definition covering “heterosexuality, homosexuality, or bisexuality.” The “gender” definition” will now cover “a person’s actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth.”
- Hairstyle as a Protected Characteristic: The NYC Commission on Human Rights recently issued guidance specifying that the City’s anti-discrimination law bars discrimination due to an employee’s natural hair or hairstyle that is closely associated with their racial, ethnic, or cultural identity.
- Written Determinations of Accommodation Requests: City law will now specifically require employers to engage in a “cooperative dialogue” with employees who may be eligible for a reasonable accommodation for various reasons, including religious needs, disability, and pregnancy. The new “cooperative dialogue” requirement mandates that employers have a good faith written or oral dialogue with their employees about the accommodation request and how it can be addressed. A final determination must be given to the employee in writing.
- Lactation Rooms and Written Policy: Employers must provide lactation rooms upon request and adopt a written lactation room policy.
Fair Workweek and Deduction Laws (these laws are specific to the fast food and retail industries)
- Laws affecting fast food employers:
- Employers must give employees good faith estimates of their work schedules by their first day of employment.
- Employers must provide employees with their written work schedule at least two weeks in advance.
- Employers must provide an opportunity for existing employees to work newly available shifts prior to hiring new employees to work those shifts.
- Employers cannot schedule employees to work back-to back shifts over a two-day period unless more than eleven hours have passed, and if that time period has not lapsed, the employee must be paid a $100 premium.
- Employees may deduct voluntary contributions from their paychecks payable to non-profits, and upon written revocation submitted to the employer, the employee can revoke authorization for same.
- Laws affecting retail employers:
- Employers must provide employees with their written work schedule at least seventy-two hours in advance.
- Employers cannot schedule employees for on-call shifts.
- Employers cannot require employees to work shifts added to their schedule within seventy-two hours.
- Employers cannot cancel an employee’s shift within seventy-two hours of the scheduled start time.
Employers should closely monitor these laws and any additional guidance issued by the State or City. In addition, employers should update their handbooks and workplace notices and postings, as appropriate, particularly because many of these laws require businesses to adopt policies and provide notices to employees. If you have any questions or concerns about your obligations, Reed Smith’s experienced Labor and Employment Group is ready to speak with you.