New York State Department of Labor (NYSDOL)

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Employment legislation and litigation are often about trends. In the mid-to-late 2010’s, for instance, lawmakers across the U.S. enacted numerous bills concerning paid time off for employees, such as for sick and family leave. A more recent trend involves regulatory and legislative attempts to limit or even outright ban non-compete agreements.

In New York State, the unquestionable employment litigation trend over the past several years has revolved around frequency of pay claims under Section 191 of the New York Labor Law (NYLL). This trend was born out of a radical 2019 appellate court decision that broke from more than a century of judicial precedent.

As more fully discussed below, however, two recent developments – one legislative and one judicial – suggest that the flood of frequency of pay lawsuits may soon be a thing of the past.Continue Reading Are frequency of pay lawsuits in New York soon to be a thing of the past?

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.Continue Reading BREAKING: New York Labor Department unveils guidance on HERO Act, starting the clock for all Empire State employers to adopt airborne infectious disease exposure plans

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:

  • Updated deadline to adopt a prevention plan – Under the amendment, the New York State Department of Labor (NYSDOL) has until July 5, 2021 to promulgate industry-specific workplace health and safety standards for preventing exposure to airborne infectious diseases, with which all New York employers are required to comply. (The amendment also specifies that the NYSDOL must develop separate 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 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.Continue Reading New York’s amended HERO Act now in effect

As we previously reported, over the past year, New York State has adopted a statewide sick leave law, paid leave for COVID-19 vaccination, and paid quarantine leave.  Last week, the New York State Department of Labor (NYSDOL) issued guidance on the use of New York State Sick Leave (NYSSL) as it pertains…

In late April, New York State legislators passed a bill that can best be described as a “game changer.” Known as the Health and Essential Rights – or HERO – Act, the bill proposes a novel, sweeping overhaul of the Empire State’s workplace health and safety laws. Among other things, the HERO Act directs New York State Department of Labor (NYSDOL) to create minimum workplace safety standards, requires all New York business to adopt airborne infectious disease exposure plans, and authorizes the creation of joint labor-management workplace safety committees within every company.

The bill now heads to Governor Andrew Cuomo’s desk, where it is expected to be signed in the near term. Below we will outline the key provisions of the HERO Act.
Continue Reading New York legislators pass sweeping new workplace health and safety bill

As we have reported, since March, New York State has implemented a variety of measures to limit the spread of COVID-19 and to protect workers during the pandemic. These measures include essential business designations, limiting in-person work, paid leave for certain employees impacted by COVID-19, phased reopening of nonessential businesses, mandatory health and safety protocols, and requiring a business reopening safety plan. The New York State Department of Labor (NYSDOL) is charged with enforcing many of these measures with which all New York businesses have been and are required to comply.

With many regions now in “Phase Three” of the state’s reopening scheme, the NYSDOL will likely begin auditing employers and investigating complaints to ensure that businesses are complying with New York’s many COVID-19 regulations. For example, the NYSDOL may request from employers an explanation or documentation of the health and safety measures in place at their in-person places of business. In addition, the NYSDOL may inquire as to whether employees have contracted COVID-19 and, if so, what protocols businesses implemented as a result.
Continue Reading Reminder to New York employers: the New York State Department of Labor will be enforcing COVID-19 regulations

New York state rang in 2020 with a sweeping change to its minimum wage and tip credit rules that is expected to impact roughly 70,000 workers. On December 31, 2019, the New York State Department of Labor (the NYSDOL) recommended to Governor Andrew Cuomo that the state eliminate the tip credit for all miscellaneous industry workers (don’t worry, we will explain what that means). Governor Cuomo has announced that he will implement the recommendation, which will go into effect later this year.

By way of background, both federal and New York state laws generally require that employers pay non-exempt – i.e., hourly – employees at least the applicable minimum wage rate. Both laws, however, contain an exception that permits employers to pay tipped employees less than the minimum wage, provided that the employees’ direct wages plus tips equal or exceed the minimum wage rate or overtime rate, as applicable. The difference between the minimum wage rate – which presently varies between $12.50 and $15 per hour in New York (depending on location within the state) – and the reduced wage for tipped employees is known as a “tip credit.” In practical terms, the tip credit means that certain employers are permitted to pay employees at a rate lower than the minimum wage so long as the employees receive sufficient tips in the course of their work.

Continue Reading New year, new changes to New York state’s minimum wage and tip credit rules