Analysis and commentary by Reed Smith attorneys on developments in employment and labor law
As we previously reported, effective today, masks must be worn in New York State in “all indoor public places unless businesses or venues implement a vaccine requirement.” On Friday, December 10, 2021, the State issued guidance on the measure, clarifying the following key points:
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Just a short while ago, New York State Governor Kathy Hochul announced that, effective December 13, 2021, masks will be required to be worn in “all indoor public places unless businesses or venues implement a vaccine requirement.” This means that, for any business that does not have a proof of vaccination requirement in place, all…
Earlier today, New York City Mayor Bill de Blasio announced that, effective December 27, 2021 and as part of an expansion of the city’s “Key to NYC” program, all private-sector employers in the Big Apple will be required to adopt a mandatory COVID-19 vaccination policy for their employees. The expanded program will also include additional…
Monitoring employee communications – particularly electronic communications – is standard practice for most U.S. employers. Beginning in May 2022, however, employers in New York state who engage in electronic monitoring of employee communications will be required to make certain disclosures to their workers.
Pre-employment written notice for new hires
More particularly, on November 8, 2021, Governor Kathy Hochul signed into law state Senate Bill S2628 requiring that all Empire State employers – regardless of size or location within the state – provide prior written notice to newly hired employees if they intend to monitor or otherwise intercept employee emails, text messages, telephone conversations, Internet access, or usage of an electronic device or system. The notice must be provided in writing, in an electronic record, or in another electronic form, and must be acknowledged by each employee either in writing or electronically.
Notably, notice only needs to be provided “upon hiring.” This means that notices only need to be given to employees hired on or after May 7, 2022 – the law’s effective date – but not to existing employees. In addition to this notice, employers must post a notice of electronic monitoring in a conspicuous location within the workplace that is readily available for viewing by all employees who will be subject to the monitoring.
Continue Reading New York becomes latest state to legislate workplace privacy protections
Although New York has had an employment-related whistleblower statute for decades, many employers may not have been aware of it. That is because the statute itself – N.Y. Labor Law section 740 – has been fairly limited in its scope and application. Indeed, it has only protected employees who disclose employer activity that violates laws relating to public health and safety or to health care fraud. Disclosures of other unlawful activities have not been protected by section 740.
That will no longer be the case, however, starting next year. Late last month, New York Governor Kathy Hochul signed a bill that will amend and effectively overhaul section 740. The amended law, which is scheduled to take effect on January 26, 2022, drastically expands the breadth and scope of section 740 by making it significantly easier for New York workers to bring a claim, lengthening the statute of limitations, and imposing a notice requirement on employers.
Overview of key updates to section 740
Previously, section 740 was a narrow statute that primarily barred employers from taking retaliatory action against employees only where the employee had disclosed or threatened to disclose to a supervisor or public body, or had objected to or refused to participate in “an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud.” The prior version of the law thus required that an actual legal violation have occurred – i.e., an employee’s reasonable belief that a violation had occurred was insufficient – and was intended to curb only activities that posed a substantial and specific danger to public health or safety or that constituted health care fraud.
The amended statute, however, broadly expands this scope of protected activity. Specifically, the law now bars employers from taking retaliatory action where the employee discloses or threatens to disclose to a supervisor or public body, or objects to or refuses to participate in “an activity that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.” The new definition, therefore, essentially protects, and bars employers from retaliating against, workers who report any actual, or reasonably perceived by the employee, violation of any law, rule, regulation, executive order, or judicial or administrative decision, ruling, or order at all, regarding of its subject matter. To say that this is a dramatic expansion of Section 740 would be an understatement.…
Continue Reading New York enacts sweeping expansion of state’s whistleblower law
As we previously reported, earlier this year New York lawmakers passed a law requiring that all Empire State employers provide their employees with up to four hours of paid time off to receive the COVID-19 vaccine. Shortly thereafter, the New York State Department of Labor (NYSDOL) published guidance on the measure, clarifying that: (i)…
Back in 2015, New York City joined the “Ban the Box” bandwagon and passed a law that delays when criminal background checks can be run on most Big Apple job applicants. Specifically, the Fair Chance Act (FCA) prohibits NYC employers from inquiring about a job applicant’s criminal conviction history until after a conditional offer of employment is extended and requires that employers undertake a multi-step process if they want to rescind a job offer based on the results of a criminal history inquiry.
Against this backdrop, on January 10, 2021, the New York City Council passed important amendments to the FCA, which amendments went into effect July 29, 2021. As detailed below, the amendments significantly expand the scope of the FCA and impose additional affirmative obligations on New York City employers.
Continue Reading Sweeping amendments to New York City’s “Ban the Box” law are now in effect
Earlier this year, New York lawmakers passed a novel, sweeping overhaul of the State’s workplace health and safety laws. Known as the HERO Act, the law is intended to “to protect employees against exposure and disease during a future airborne infectious disease outbreak.”
Among other things, the HERO Act requires that the New York State Department of Labor (NYSDOL) create written model airborne infectious disease exposure prevention standards to cover Empire State workplaces. More particularly, the NYSDOL is tasked with creating separate model standards for (i) industries representing a significant portion of the workforce, or those with unique characteristics requiring distinct standards, as well as (ii) all worksites that are not included in the specific industry standards.
The NYSDOL’s publication of the model standards is important for a host of reasons, including because all New York employers – regardless of size, industry, or location – will then have 30 days from the date on which the NYSDOL publishes the model written standards, to establish their own airborne infectious disease exposure plan. This requirement can be satisfied by adopting the NYSDOL’s model standards (as applicable based on industry), which it is expected that many, if not most, New York employers will do. (The requirement can also be satisfied by instead adopting an alternative plan that meets or exceeds the NYSDOL’s standards.)
To that end, earlier today, the NYSDOL, in consultation with the New York State Department of Health, issued the long-awaited Airborne Infectious Disease Exposure Prevention Standard, Model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific model plans for the prevention of airborne infectious disease. The specific industries covered are agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing and industry, personal services, private education, private transportation, and retail. All of the materials can be accessed here.…
Last month, we reported on New York’s passage of the so-called HERO Act, a landmark law that imposes a novel, sweeping overhaul of the State’s workplace health and safety laws. Although the HERO Act was set to take effect on June 4, the State on June 11 amended the law, including to delay its effective date until July 5. The critical changes to the HERO Act are as follows:
The amendment further clarifies that, once the NYSDOL publishes the model standards, employers will have 30 days to adopt their own airborne infectious disease exposure prevention plan. Employers can still either directly adopt the model plan or can adopt a plan that meets or exceeds the model plan’s minimum requirements.…
Last summer, as New York began the process of non-essential business reopenings, the State issued a series of industry-specific workplace health and safety guidelines with which all businesses were and have continued to be required to adhere. On the heels of recent CDC guidance loosening workplace-related restrictions for vaccinated employees, New York has updated these…
