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Home | BakerHostetler

When the Year Ends, It’s Time To Review Wage and Hour Trends

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<h5>Key Takeaways</h5>
<ul>
 	<li>There are several recently implemented New York City and New York state laws and pieces of upcoming state and city legislation that employers need to be aware of.</li>
 	<li>For employers, ensuring that laws in existence are appropriately adhered to is critical, and this includes areas such as electronic monitoring, employee notifications, accommodations and pay transparency.</li>
 	<li>The New York State Senate and the New York City Council continue to propose and enact laws that have substantial impacts on employers operating within New York state.</li>
</ul>
The BakerHostetler Labor and Employment Practice Group keeps a close watch on new and upcoming employment and labor laws that could have a significant impact on our New York-based clients. This alert highlights just some of the recently implemented laws and pieces of upcoming state and city legislation and explains the potential impact of each new and proposed law on your business. If they have not already done so, employers should reach out to counsel now for guidance on how to become compliant with these new laws.
<h5>New York State Employment Laws</h5>
Implemented Laws

New York’s Electronic Monitoring Law Requires Notice of Monitoring to Employees

This <a href="https://www.nysenate.gov/legislation/bills/2021/S2628">law</a>, which went into effect on May 7, 2022, requires New York state employers to put employees on notice prior to monitoring their emails, Internet use, videoconferences, text messages, phone calls, or any other electronic device or system. This law does not define “monitor,” “intercept,” “transmission,” or “photoelectronic or photo-optical systems”; therefore, employers should err on the side of caution when notifying employees. To provide notice, employers must:
<ol>
 	<li>Provide written notice of monitoring to new employees and obtain their written acknowledgment, and</li>
 	<li>Post a general notice for all employees in a conspicuous place.</li>
</ol>
New York Employers Must Provide Workplace Notices and Posters to Employees Electronically

<a href="https://www.nysenate.gov/legislation/bills/2021/S6805">Senate Bill S6805</a>, which took effect Dec. 16, 2022, requires New York state employers to make any legally required notices and posters available electronically. The employers must post these notices or posters on their website or circulate them to employees by email and notify the employees that the required notices and posters are available electronically.

Nursing Mothers in the Workplace Act Adds New Location, Accommodations and Policy Updates

The Nursing Mothers in the Workplace Act (the Act) was implemented in 2017. This act requires New York state employers to provide daily paid or unpaid break time to lactate for up to three years following the birth of a child and to provide a lactation room in privacy and close to the employee’s work location. On Dec. 9, 2022, Gov. Kathy Hochul signed <a href="https://www.nysenate.gov/legislation/bills/2021/S4844">legislation</a> clarifying employers’ obligations under the Act. The new legislation goes into effect on June 7 and mimics the lactation accommodation requirements already implemented in New York City.

The state amendment says that when an employee requests a lactation room, an employer must provide a room or location that is (i) in proximity to their work area, (ii) well lit, (iii) shielded from view, (iv) free from intrusion from other persons in the workplace or the public, and (v) not a restroom or toilet stall. The room or location must provide, at minimum, a chair, a working surface, nearby access to clean running water and, if the workplace is supplied with electricity, an electrical outlet. The nursing parent is entitled to take a lactation break “each time such employee has reasonable need to express breast milk.” If the room is not solely dedicated to lactation use, the room or other location must be made available to an employee whenever the employee needs it, and it cannot be used for any other purpose or function while in use by the employee. The employer must give notice to all employees when the room has been designated for such use. If the workplace has access to refrigeration, the employer must extend access to refrigeration for the purposes of storing breast milk. An employer cannot penalize their employee for exercising their rights under this Act.

Like the New York City law, the Act now requires employers to adopt a legally compliant lactation accommodation policy, which must be distributed to each employee upon hire, to employees returning to work following childbirth and to all employees annually. The New York State Department of Labor is required to develop a model written policy that employers must provide to their employees. Until that occurs, though, employers should have their own policy in place and then adopt the state’s policy or update any existing policies to conform to the new requirements.

New York’s State Pay Transparency Law Amended as to Remote Workers

Hochul recently signed an amendment to New York state’s <a href="https://www.nysenate.gov/legislation/bills/2021/S9427">pay transparency law</a> (to be effective Sept. 17) to exclude remote workers. The state pay transparency law requires the disclosure of the compensation or range of compensation in any advertisement for a job, promotion or transfer opportunity. In addition to salary disclosure, employers must also disclose the job description for the position if one exists. Before the amendment, this law applied to advertisements for any jobs that can or will be performed, at least in part, in the state of New York. With the amendment, however, the law applies only to jobs that will be physically performed in the state or if the worker is remote but reports to a supervisor, office or other work site in New York. Job postings for these positions must still include the pay range.

Proposed Legislation

Senate Bill S345 Doubles Statute of Limitations for Workplace Discrimination Claims

Senate Bill S345 would double the statute of limitations for workplace discrimination claims from three years to six years. While this bill has been passed by the Senate, it has not yet been passed by the state Assembly.

Senate Bill S5459 Effectively Ends At-Will Employment in New York State

<a href="https://www.nysenate.gov/legislation/bills/2023/S5459">Senate Bill S5459</a> would prohibit “wrongful discharge” of an employee, which is defined as the discharge of an employee who was not in a probationary period of employment and whose discharge was not for good cause or when the employer violated an express provision of its own written personnel policy before the discharge and the violation deprived the employee of a fair and reasonable opportunity to retain their employment. Under this bill, an employee would be able to recover lost wages and fringe benefits for up to four years from the date of discharge. As drafted, the bill has a six-year statute of limitations.

The bill would also allow an employee or employer to make a written offer to arbitrate a dispute covered by the act. The bill has been referred to committee in the state Senate and has not been put on the floor calendar for vote, but if it passes in its current form, it would essentially do away with “at-will” employment in New York.

Senate Bill S636 Requires Data Reporting on Gender, Race and Ethnicity

<a href="https://www.nysenate.gov/legislation/bills/2023/s636">Senate Bill S636</a> would require certain companies and corporations to report data on the gender, race and ethnicity of their employees. This bill aims to be the state equivalent of the Equal Employment Opportunity Commission’s EEO-1 report. The EEO-1 report requires private sector employers with 100 or more employees and federal contractors with 50 or more employees to submit demographic workforce data involving race, ethnicity, sex and job categories. Under S636, New York state will require companies that must submit an EEO-1 report to also file “substantially similar information with the New York Secretary of State.” The secretary of state will then publish the data on its official website within 90 days of receipt. While this bill has been passed by the Senate, it has not yet been passed by the state Assembly.
<h5>New York City Employment Laws</h5>
Implemented Laws

New York City’s Pay Transparency Law Requires Employers to Include a Good Faith Salary or Hourly Wage Range in Job Listings

Prior to New York City announcing the state’s transparency law, on Nov. 1, 2022, New York City’s pay transparency law went into effect. If the job can be performed in whole or in part in New York City, this law requires employers to include a good faith pay range in all job advertisements. The law applies to internal promotions and transfer opportunities. While job applicants do not have a private cause of action under this law, current employees can sue their employer if the employer violates this law with respect to a job, promotion or transfer opportunity. For further details about the pay transparency law, you can listen to a <a href="https://www.bakerlaw.com/Gaining-Clarity-on-Pay-Transparency">podcast</a> by a member of our Labor and Employment Practice Group.

Users of Automated Employment Decision Tools Must Conduct Bias Audits and Notify Job Candidates

As discussed in one of our <a href="https://www.bakerdatacounsel.com/ai/what-about-the-robots-that-are-already-here-new-york-city-begin-enforcement-artificial-intelligence-applications-july-5-2023/">prior alerts</a>, New York City recently passed a law regulating employers’ use of automated employment decision tools (AEDTs). Although enforcement of the law has been delayed until July 5, employers that have not done so already should prepare now for enforcement by the city.

Generally, this law requires employers that utilize AEDTs to first conduct a bias audit and notify job candidates of their usage. Thus, employers cannot use AEDTs unless:
<ol>
 	<li>The tool has been subject to a bias audit within one year of the use of the tool, and</li>
 	<li>A summary of the bias audit has been made publicly available on the employer’s or employment agency’s website.</li>
</ol>
The law also includes very specific notice requirements. If an employer uses an AEDT to assess or evaluate candidates for hiring or promotion, the employer must notify the candidate within 10 business days prior to usage of the tool and allow the candidate or employee to request an alternative selection process or accommodation. Notice may be provided by mail or on the career or job section of the employer’s website. The employer or employment agency must also disclose on its website or make available to a candidate or employee within 30 days of receiving a written request:
<ol>
 	<li>Information about the type of data collected for the AEDT,</li>
 	<li>The source of the data collection, and</li>
 	<li>The employer’s or employment agency’s data retention policy.</li>
</ol>
While the employer must give instructions for how individuals can request an alternative selection process or reasonable accommodation, employers are not obligated to provide an alternative selection process.

Please review our prior alert for a detailed discussion of the nuances of this new law, and contact counsel for guidance on complying with the law’s requirements.

Potential Laws Coming Down the Pike

Amendment to the New York City Human Rights Law Prohibits Discrimination on the Basis of a Person’s Height or Weight

This <a href="https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=5570369&amp;GUID=DF289A07-73A5-4AFE-8932-7EA5D1FA6577">bill</a> would amend the New York City Human Rights Law to prohibit discrimination on the basis of a person’s actual or perceived height or weight in relation to opportunities of employment, housing and access to public accommodations. The bill includes an exemption for employers needing to consider height or weight in employment decisions where height or weight is a bona fide occupational qualification reasonably necessary to the normal operation of the business. It would also exempt operators or providers of public accommodations where height or weight requirements would qualify as bona fide considerations of public health and safety.

While the bill is currently laid over in the Committee on Civil and Human Rights, it currently has enough cosponsors to pass, and Mayor Eric Adams has signaled his support for the legislation, indicating that this bill will likely pass and be signed into law this year. Because the law will go into effect 180 days after passage, employers should be aware of this new protected category and consider updating employee handbooks and anti-discrimination policies by the end of the year.

The Wrongful Discharge From Employment Act Prohibits Termination From Employment Without Just Cause

The <a href="https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=5958217&amp;GUID=44D72CEC-FE82-4A43-BA31-4BB15FBC15EB&amp;Options=ID|Text|&amp;Search=0837-2022">Wrongful Discharge From Employment Act</a> would prohibit employers from terminating employees without just cause. It would also prohibit the use of electronic monitoring in discharging or disciplining employees unless employers fall into certain exceptions. This act would expand a current law in New York City that prohibits the discharge of fast-food employees without just cause and extend it to employees of all industries. Like its state-level counterpart, Senate Bill S5459 (discussed above), the proposed law has only been referred to committee in the legislature.

New Right to File a Private Civil Action for Violation of the Earned Sick Time Act

This <a href="https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=5725230&amp;GUID=86C91E72-3108-42A9-A2F3-892B03EBA720&amp;Options=ID|Text|&amp;Search=">bill</a> would add a right to file a private civil action under the Earned Sick Time Act (ESTA), which allows most private employees in New York City to earn paid sick time from their employers. Under the current law, employees who are denied their rights under the ESTA can only file a complaint with the Department of Consumer Affairs. If passed, this bill would allow these employees to also file a case with any court of competent jurisdiction to enforce their rights, enabling employees to seek an award of compensatory damages, injunctive and declaratory relief, and attorneys’ fees and costs. This bill has been referred to committee in the city legislature.
<h5>Conclusion</h5>
The New York State Senate and the New York City Council continue to propose and enact laws that have substantial impacts on employers operating within New York state. The BakerHostetler Labor and Employment Practice Group will continue to monitor the status of the proposed bills and recently enacted laws, and will provide updates as appropriate. It is strongly recommended that employers speak with employment counsel about how their businesses may be impacted and steps they can take to address necessary workplace changes.

New and Proposed New York and New York City Legislation

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