New York Workplace Compliance
News & Resources
Life moves fast in New York. From the crowded streets of Manhattan to the winding roads and sudden shifts in weather upstate, there’s little time to catch a break or catch a breath. To make it in the Empire State, businesses need to have grit, acuity, and the capacity to adapt to tough, ever-changing circumstances.
Those circumstances include the state’s rigorous workforce laws and regulations. New York has earned a reputation for far-reaching legislation and aggressive enforcement of rules surrounding employee health and safety, fraud, harassment, and more. For employers, noncompliance could lead to significant fines, litigation, and even criminal prosecution. Learn what you need to know to keep your people safe and stay on the right side of the law.
Stay on top of safety and compliance the right way with this New York-specific information but be sure to seek legal counsel when you’re looking for how these changes will directly impact your business. Wherever available, KPA products are updated with the latest government notices and posters for employers.
New York COVID News
Who: New York City employers and employees in the private sector
When: Effective November 1, 2022
What: On September 20, 2022, New York City Mayor Eric Adams announced that the COVID-19 vaccine mandate for private employers will no longer be in effect as of November 1, 2022. New York City employers are permitted to decide whether or not to continue their own independent vaccine mandates for workers and employees.
Following November 1, New York City’s COVID-19 vaccine mandate for all public workers will continue to remain in effect.
How:
Educate and inform your employees about state mandates and safety protocols.
Review and re-evaluate your COVID-19 policies and procedures with the assistance of competent counsel.
Additional Resources:
Who: New York employers and employees
When: Effective immediately
What: The New York state government has updated the state COVID-19 guidance in order to align with the CDC’s updated recommended quarantine guidelines, released on August 11, 2022. Per the update, barring a positive test, New York residents are no longer required to quarantine following a COVID-19 exposure if they do not exhibit symptoms.
New York State and the CDC continue to recommend that individuals exposed to COVID-19 wear a mask for the next 10 days and get tested after the fifth day regardless of vaccination status.
How:
Review your current policies and procedures and update them to comply with the new guidance.
Educate and inform your employees about state mandates and safety protocols.
Additional Resources:
Who: New York City employers and employees
When: Effective immediately
What: In December of 2021, a bill was introduced to amend New York City’s Earned Safe and Sick Time Act. Under the new amendment, an employee who is a parent or a legal guardian to a child is entitled to up to four hours of paid time off for taking their child to get vaccinated against COVID-19. These four hours are in addition to the already-existing PTO provided by New York City’s Safe and Sick Time Act for employers.
This bill also covers employee time off taken to accompany an adult over the age of 18 with mental or physical disabilities to a COVID-19 vaccine appointment.
Parents are permitted to leave their place of employment in order to accompany their child to receive a vaccine, or provide care for their child should they experience side effects. Per the bill, employees will be compensated their regular rate of pay for the time they take off no later than the next pay period.
Employers are permitted to require employees show proof of child vaccination within seven days of their paid sick leave. Employers are not permitted to request their employee work overtime to make up for their time off, nor are they required to find a replacement to cover their lost hours.
This bill retroactively affects employee time off taken after November 2, 2021, and is expected to sunset on December 31, 2022.
Employers who refuse to compensate their employees for their sick leave may be required to pay the greater of three times of missed wages or $250. Employers who deny employee leave may be required to pay their employees a $500 compensation.
How:
Review your current policies and procedures and update them to comply with the bill.
Additional Resources:
Who: All employers in New York and any primary or secondary location where work is performed (including employer-provided transportation and housing)
When: Effective until March 17, 2022
What:
Update 3/22/2022: The New York State HERO Act expired on March 17, 2022 with no current plans for extension or readoption. Private employers no longer need to comply with the HERO Act’s workplace COVID-19 exposure prevention plans, although the plan still must be posted in the workplace and provided to employees. New York City employers are currently still subject to the city’s workplace COVID-19 vaccine mandate.
In its fifth extension since September 2021, employers must continue implementing their airborne infectious disease prevention plans until March 17, 2022. This extension includes the daily COVID-19 employee screenings for those individuals working on-site.
The New York State Department of Labor published an updated model safety plan with recommendations for wearing masks indoors. Masking is no longer strictly required but should follow along with guidance from the State Department of Health or the CDC. If indoor places don’t have a mask or vaccine requirement as a condition to enter the area, face coverings are recommended, but not required. It is recommended that unvaccinated people wear face coverings.
The New York State Commissioner of Health will evaluate whether to extend the requirement at that time based on COVID-19 transmission levels.
Next Steps:
- Continue to implement your airborne infectious disease prevention plan.
- Monitor for any news or announcements of another extension of the NY HERO Act safety plans from the New York Commissioner of Health or the State Department of Labor
Additional Resources
Commissioner’s Designation Pursuant to Labor Law § 218-b for COVID-19 December 15, 2021
Commissioner’s Designation Pursuant to Labor Law § 218-b for COVID-19 January 15, 2022
Who: New York City employers and employees
When: Starting December 27, 2021
What: On December 6th, 2021, Mayor Bill de Blasio announced a vaccine mandate for all private employers within New York City. By December 27th, 2021, all private-sector employees are required to provide proof of at least one dose of vaccination in order to be present in a city workplace. The mandate is the first in the nation for workers within the private sector. There is no option for workers to forego vaccination and provide negative COVID-19 tests.
The mandate was issued to help protect against COVID-19 variants and to reduce local transmission. The city has yet to announce whether or not the mandate will apply to remote workers, and no exemptions to the mandate due to religious belief or medical considerations have been announced. Additionally, no legal consequences for failing to comply with the mandate have been identified.
The new mandate serves as an expanded version of the Key to NYC program applicable to city employers and businesses. The program requires that everyone over the age of 12 show proof of two doses of the COVID 19 vaccine and one dose of a COVID-19 vaccine from Johnson & Johnson in order to participate in indoor dining, indoor fitness, and indoor entertainment. On January 28th, 2022, the program will extend to include the same requirements for children ages 5 to 11.
As of December 14th, New York City has administrated over 12.5 million vaccines and approximately 94% of New York City’s workforce is vaccinated against Covid-19.
How:
- Review your current policies and procedures and update them to comply with the new mandate.
- Educate and inform your employees about state mandates and safety protocols.
- Consult with legal professionals and stay up-to-date on the potential consequences for failing to comply with the new mandate.
- Monitor for additional guidelines to be released by New York City on December 15, 2021.
Additional Resources:
Press Release of the New Vaccine Mandate for Employers
Who: New York employers and employees
When: Effective immediately
What:
Update 1/31:2022: The New York face mask mandate was extended to February 10, 2022. The mask mandate for employers and employees subject to the New York State HERO Act was extended to February 15, 2022.
Update 1/21/2022: The New York face mask mandate was extended to February 1, 2022. All New York City residents over the age of two are required to wear a face covering in all indoor public spaces barring vaccine mandates required for businesses and venues.
On December 10th, 2021, Governor Kathy Hochul announced a new mask mandate for indoor public settings. Barring vaccination requirements put in place by private businesses and venues, all visitors must wear a mask while indoors.
This new mandate went into effect on December 13th, 2021 and will continue until January 15th, 2021. Following the end of the mandate, New York State will re-evaluate the order based on current conditions. This order is a response to the winter surge of the COVID-19 pandemic and a means to combat the spread of the Omicron variant.
Masking requirements for schools, public transit healthcare buildings, adult care facilities, and homeless shelters remain in effect regardless of vaccination status.
The public spaces affected by this mandate, as defined by New York State include restaurants, office buildings, indoor shopping centers and malls, concert halls, indoor sports stadiums, entertainment venues, and common areas within residential buildings. Per the new mandate, masks can only be removed at venues that serve food and drink and only while patrons are actively eating or drinking.
Under this mandate, private businesses and venues are given the choice between a mandatory vaccination requirement or a masking option for patrons and staff. Either selection must apply to all who enter the business or venue. Businesses that choose the vaccination requirement must ensure that those over the age of 12 provide proof of full vaccination (following the 14-day incubation period) prior to entering their establishment.
Children between the ages of 2 and 5 who are not yet eligible for vaccination must wear a proper-fitting mask while indoors.
Noncompliant businesses are subject to civil and criminal penalties may be fined up to $1,000 for each violation.
How:
- Review your current policies and procedures and update them to comply with the new mandate.
- Educate and inform your employees about state mandates and safety protocols.
Additional Resources:
New York State Masking Action to Address Winter COVID-19 Surge (Press Release)
New York State Commissioner’s Determination on Indoor Masking Pursuant to 10 NYCRR 2.60
New York HR News
Who: New York employers
When: Effective November 16, 2024
On November 16, 2023, Governor Kathy Hochul signed S7551A, known as the “Clean State Act,” which goes into effect on November 16, 2024. The law protects applicants from discrimination based on criminal history and requires automatic sealing of specific criminal history records. It is intended to help the formerly incarcerated to obtain employment, education, and housing. Employers may not inquire about or discriminate based on an applicant’s sealed criminal records.
The law requires certain misdemeanor convictions to be sealed three years after incarceration, or the imposition of the sentence if there was no sentence. Certain felony convictions will be sealed eight years after incarceration, or the imposition of the sentence if there was no sentence. Records will not be sealed until parole or probation is complete.
Records won’t be sealed if the applicant is charged with another criminal charge before the waiting period is complete. The legislation does not allow for sealing records related to sex crimes, murder, or other non-drug Class A felonies or criminal convictions under federal law or any other state law.
Unless the employer is exempt, an applicant or employee can respond as if the criminal record did not exist if an employer requests or requires sealed criminal records.
In some situations, inquiries into otherwise sealed records are allowed, such as legally required background checks for jobs involving children, the elderly, or other vulnerable populations and the hiring of police and peace officers.
How:
- Review your screening, onboarding, and background check policies and practices to ensure compliance with the law.
- Seek legal counsel as needed.
Additional Resources:
New York Correction Law Article 23-A
Who: New York private and public employers
When: Effective June 19. 2024
Effective June 19, 2024, all private and public employers a must provide employees with a paid 30-minute lactation break each time they have a reasonable need to express breast milk. Employees are also allowed to use other paid breaks and meal times for the purpose of expressing breast milk each time they need more than 30 minutes to do so.
The law is applicable to employees who need to express breast milk for up to three years following child birth. It applies to all employers with at least one worker in New York State. Employers are prohibited from discriminating against employees for exercising their rights under the law.
How:
- Update your relevant policies and procedures to include paid lactation breaks.
- Monitor for the release of updated guidance.
- Train managers and employees on the law.
- Comply with requirements to post notices and distribute the lactation policy.
- Document the accommodation process.
Additional Resources:
Breast Milk Expression in the Workplace
Expressing Breast Milk in the Workplace
New York Policy on the Rights of Employees to Express Breast Milk in the Workplace
Who: New York City employers
When: Effective July 1, 2024
The New York Department of Consumer and Worker Protection (DCWP) issued a multilingual “Your Rights at Work” poster on March 1, 2024, with a QR code that links to City’s Workers’ Rights web page. That page explains employees’, prospective employees’, and independent contractors’ rights and protections under relevant federal, state, and local law; provides information about employees’ rights to form a union; and explains that worker rights apply regardless of immigration status.
New York City employers must post the Your Rights at Work poster where employees can easily view and access it; post it on their intranet or mobile app if they use them as a regular mode of communication to employees; and provide a copy of it to every current employee by July 1, 2024. In addition, employers must provide a copy of the notice on or before an employee’s first day of work, starting July 1, 2024.
Violations are subject to a $500 civil penalty. Enforcement is complaint-based. First time offenders will be given 30 days to correct the violation.
How:
- Familiarize yourself with the new law and its requirements.
- Post and distribute the “Your Rights at Work” poster by July 1, 2024.
Additional Resources:
Who: New York City employers
When: Bill of Rights Notice to be published by March 1, 2024; post and provide notice by July 1, 2024
On December 3, 2023, the New York City Council pass a law that will require New York City employers to provide a workers’ bill of rights their employees. Several agencies will work together to publish a final draft of the document on the City’s website no later than March 1, 2024.
Employers will have to:
- Post the notice on their website or mobile app;
- Post it in the workplace in a place that is accessible and visible to employees;
- Provide a copy of the bill of rights to their current employees by July 1, 2024; and
- Provide a copy to all new employees on their first day of work.
The notice must be in English and any language spoken as a primary language by at least 5% of employees, if the City has posted the information in said language.
The bill of rights will:
- State the federal, state, and local labor laws that protect employees and independent contractors,
- Provide information about employees’ rights to form a union, and
- Explain that worker rights apply regardless of immigration status.
Violations are subject to a $500 civil penalty.
How:
- Monitor the New York City website for the publication of the notice by March 1, 2024.
Additional Resources:
Who: New York employers
When: Effective January 1, 2024
On May 3, 2023, Governor Kathy Hochul signed SB S4006C into law, effective January 1, 2024. The law increases the New York minimum wage at the beginning of the year. In previous years, the minimum wage took effect in December.
The minimum wage for New York City, Westchester, and Long Island will increase to $16.00 per hour. The minimum wage for the rest of New York state will increase to $15.00 per hour. Further, the law states that New York will increase the minimum wage each year from January 1, 2024, to January 1, 2026. For 2027 and beyond, the state will base increases on the U.S. Department of Labor consumer price index, which is published by October 1 of the previous year. If the index is negative, there will be no increase in minimum wage.
The exempt salary threshold will also increase. In the past, the threshold has been 75 times the hourly minimum wage per week.
How:
- Provide updated Notices of Pay Rates to affected employees.
- Ensure that you are paying all employees in accordance with the new minimum wage as of the beginning of the year.
Additional Resources:
Who: New York employers
When: Effective November 13, 2023
On September 14, 2023, New York Governor Kathy Hochul signed Senate Bill 4878A, which amends Section 590 of New York Labor Law. The law goes into effect November 13, 2023, and applies to all New York employers.
The amendment requires employers to provide a written notice of their right to unemployment insurance benefits under these circumstances:
- Reduction in hours
- Permanent or indefinite separation
- Temporary separation
- Any other interruption of employment that results in total or partial unemployment
Employers must use the notice provided by the New York Department of Labor or one that it approves. It must include:
- Employer name,
- Employer registration number,
- Employer address, and
- Any other information required by the New York Department of Labor commissioner.
How:
- Provide notice of an employee’s right to unemployment insurance benefits upon separation as required by the law.
- Review your separation notices and agreements and update your notification process as needed to comply with the law.
Additional Resources:
Who: New York City employers
When: Effective immediately
On September 15, 2023, New York City amended its Earned Safe and Sick Time Act (ESSTA) and the New York City Department of Consumer and Worker Protection adopted the changes effective October 15, 2023. Changes include the definition of covered employee, how to determine employer size, notice requirements, documentation requirements, and how to make leave balances available to employees.
The amendments clarify that an employee who performs work, including telecommuting, only while physically located outside of the City of New York is not “employed for hire within the City of New York,” even if the employer is located in New York City. An employee with a primary work location outside of New York City could be covered “if they regularly perform, or are expected to regularly perform, work in New York City” during a calendar year. Only hours worked within the City count as “hours worked” for the purposes of safe and sick time accrual. All domestic workers are entitled to safe and sick time.
The amended law clarifies that for the purpose of counting employees to determine how much paid safe and sick time the employer has to provide, the count is based on the number of employees nationwide. The employer must count the highest total number of employees employed at any point during the calendar year to date, including full-time employees, part-time employees, employees jointly employed by one or more employers, and employees on leaves of absence, suspensions, and other temporary absence.
If an employer’s headcount increases to 100 employees at any time during the year, it must allow its employees to use an additional 16 hours of sick and safe time for the remainder of the calendar year (for a total of 56 hours). If an employer’s headcount shifts below 100 employees, it cannot reduce employee sick and safe time benefits from 56 hours to 40 hours until the following calendar year.
An employer may require reasonable advance notice of an employee’s need to use safe and sick time, but now they have to include information about that requirement in a written policy that explains how to give notice. Now an absence is considered “foreseeable” only if the employee is aware of the need to take the leave seven days or more before the use.
If an employer requires written documentation of an employee’s need for sick time, it must reimburse employees for all fees charged by a licensed health care provider and all reasonable costs or expenses incurred in obtaining such documentation. Documentation signed by a licensed clinical social worker or licensed mental health counselor is now considered “reasonable documentation” as long as it indicates a need for the employee to take sick time.
Employers who require documentation of the need to take safe and sick time must have a written policy that includes a statement of the requirement, the types of written documentation the employer will accept, and how employees can submit the documentation. Employers who withhold payment of safe and sick time until they receive reasonable documentation must state that rule in their policy.
Accruals of safe and sick time must account for all time worked, even when less than a 30-hour increment. Employers can round accruals to the nearest five minutes, one-tenth of an hour, or one-quarter of an hour.
The “regular rate of pay” means the employee’s regular rate of pay at the time they take safe and sick time. The rate cannot be less than the highest rate of the pay the employee is entitled to under applicable law, contract, or agreement.
Employers who provide paid safe and sick time in an annual upfront lump sum must inform employees upon hire that the time is immediately available for use. Employers must also include a written statement in their ESSTA policy that the employer will not ask for details about what led the employee to take safe and sick time and that they will keep the information confidential.
Additionally, the changes clarify employers’ responsibility to report accrual, usage, and balance information to employees. Employers must specify the balance and the amount of time available for use, if those two values differ. If they use an electronic system to issue documentation of the availability of sick and safe time, they must electronically alert the employee each pay period as to the availability of the required information; make the required content readily accessible by the employee outside of the workplace within the electronic system; and maintain accrual, use, and balance information for any past pay period in the electronic system.
If an employer fails to maintain or distribute a written safe and sick leave policy or maintain adequate records of employees’ safe and sick time use and balances, New York City will now make a “reasonable inference” that the employer is not in compliance with the ESSTA.
How:
- Monitor for the release of the updated Earned Safe and Sick Time notice.
- Monitor for updated administrative guidance on employers’ paid sick leave obligations.
- Update your safe and sick leave policies and paid time off policies to comply with the law.
- Train managers, supervisors, and HR personnel on the amended law.
Additional Resources:
Who: New York employers with 50 or more employees
When: Effective immediately
The New York State Department of Labor amended the New York State Worker Adjustment and Retraining Notification Act (NYS WARN Act), effective June 21, 2023. Employers with 50 or more employees at a single site must provide at least 90 days’ notice before closing a plant or enacting a mass layoff if:
- At least 33% of employees (a minimum of 25) lose their jobs/experience an employment loss at a single site (excluding part-time employees) OR
- 250 employees lose their jobs/experience an employment loss (excluding part-time employees).
Employers must now count remote workers as being employed at the site where they are based.
When selling a business, the seller must provide a notice to affected employees. The amendments specify that the seller has no such obligation if the buyer planned to transfer employees as part of the purchase agreement but then ends up not doing so.
The faltering business exception applies only to plant closings, not mass layoffs.
When asking the NY Department of Labor to make a determination about whether one of the exceptions to the WARN Act applies, employers must submit a request to the Commissioner of Labor within 10 business days of providing the required layoff/closing notice to the Commissioner, unless the Commissioner grants an extension. The request must include documentation that demonstrates why the exception is applicable and an affidavit stating that the information is true and correct.
The list of unforeseeable business circumstances warranting an exception to the Act now includes “a public health emergency, including but not limited to a pandemic, that results in a sudden and unexpected closure, [and] a terrorist attack directly affecting operations.”
Notice requirements have changed. The notice employers must give to the New York Commissioner of Labor and the chief elected official of the local government where the affected site is located, they must now also give it to the school district and the locality that provides police, firefighting, emergency medical or ambulance services, or other emergency services.
In addition, the notice must now include the following information:
- The complete legal business name, and any business names used in the operation of the business;
- Business addresses and email addresses for the employer’s and employees’ agents;
- The personal telephone number, personal email address (if known), job title, work location, full-time or part-time status, method of payment, and union affiliation of each employee to be laid off;
- The total number of their full-time and part-time employees in New York State and at each affected site;
- The number of affected full-time and part-time employees at each affected site; and
- Any other information required by the Commissioner.
The notice to affected employees must now include:
- The complete legal business name and any business names used in the operation of the business;
- The address of the affected employment site;
- The separation date;
- The business address and email address of the employer’s agent;
- Information about severance packages and financial incentives if an employee continues to work until the separation date;
- Available dislocated worker assistance; and
- For temporary layoffs or plant closings, the estimated duration.
The amended law explains how to calculate back pay for hourly and non-hourly employees when the employer fails to give proper notice. Employers can offset their liability for improper notice if they maintain “an employment agreement or a uniformly applied company policy” that provides for a notice period.
Employers are strongly encouraged to submit WARN notices through the online WARN Portal. An alternative way to submit a notice is to email it to WARN@labor.ny.gov
How:
- Seek legal counsel when contemplating a mass layoff or plant closing to ensure compliance with the WARN Act.
Additional Resources:
Who: New York employers with four or more employees
When: Effective September 17, 2023
New York Governor Kathy Hochul signed SB S1326 into law on March 3, 2023, effective September 17, 2023. The amendment applies to employers with four or more employees and to jobs that are physically performed in New York and jobs physically performed outside of New York when the employee reports to a supervisor, office, or other work site in New York.
The law amends the New York pay transparency law and requires employers to include the minimum and maximum annual salary or hourly range of compensation in job advertisements, including those for promotions and transfer opportunities. Advertising a job is defined as making “available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity.” If a job description exists, the employer must post it with the job ad.
The amendment specifies that employers no longer need to maintain related records. Employers in local jurisdictions with pay transparency laws must comply with both local and state laws.
How:
- Review your job advertisements, job descriptions, and compensation ranges to determine if you need to make changes.
Additional Resources:
Who: New York employers
When: Effective immediately
The New York Department of Labor released a model Policy on the Rights of Employees to Express Breast Milk in the Workplace pursuant to the amended State Labor Law Section 206-C, which went into effect June 7, 2023. The law requires employers to provide lactation rooms or spaces that meet certain requirements to employees to breastfeed or express milk. It also requires employers to provide reasonable unpaid break time for employees to express milk for up to three years following the birth of a child. In addition, employees are allowed to use their paid break or meal time to express milk.
Employers must adopt a written policy for workplace lactation rights and provide the policy to employees upon hire, to all employees once a year, and to employees who return to work after having a child.
How:
- Review your lactation policy and update it to comply with the model policy.
- Provide the lactation policy to employees upon hire, to all employees once per year, and to employees who return to work after having a child.
Additional Resources:
New York Department of Labor Breast Milk Expression in the Workplace
New York Policy on the Rights of Employees to Express Breast Milk in the Workplace
New York Rights of Nursing Employees to Pump Breast Milk at Work Employer Guide
New York Your Rights as an Employee to Express Breast Milk at Work Employee Guide
Who: New York hospitality, transportation, and lodging employers
When: Effective immediately
On July 20, 2023, New York Governor Kathy Hochul signed legislation in an effort to provide resources and support for victims of human trafficking. Hospitality and transportation businesses must post signs in every public restroom with information about the rights of victims of human trafficking and resources for assistance. Establishments that sell alcoholic beverages or adult entertainment must display notices of human trafficking offenses. The signs must include the hotline for the National Human Trafficking Resource Center and the phone number for the Trafficking in Persons and Worker Exploitation Task Force Complaint Line. Businesses face penalties of up to $100 a day for violations.
All New York State Liquor Authority-certified Alcohol Training Awareness Programs (ATAP) must now include a human trafficking component, including the nature of the offense, how to recognize victims, and how to report suspected offenses. Starting on July 30, 2023, employers must provide onsite ATAP training to new hires within 60 days of hire and to current employees by November 20, 2023. Employers must maintain a record of the training for at least one year after the employee has separated from the employer. Businesses that do not comply will not be authorized to administer any ATAP.
The legislation requires every inn, hotel, motel, and motor court to train each employee who is likely to meet with guests how to recognize signs of human trafficking. They must provide the training within the first 60 days of employment. The Division of Criminal Justice Services, and the Office of Temporary and Disability Assistance will provide a list of approved training programs.
How:
- Provide training on the law starting July 30, 2023, and complete it by November 20, 2023.
Additional Resources:
New York Human Trafficking Poster English
New York Human Trafficking Poster Spanish
New York Department of Labor Human Trafficking
S.7360/A.9821 (New York State Liquor Authority-certified Alcohol Training Awareness Programs)
S.244B/A.887C (Lodging Facility Employees)
S.8711A/A.9883A (Public Restrooms)
S.8678/A.9814 (Truck Stops Posting)
S.8710/A.9406 (Airport Posting)
S.8262/A.9169 (Port Authority Airports Posting)
Who: New York City employers
When: Effective July 5, 2023
The New York City Department of Consumer and Worker Protection (DCWP) published the Final Rule regarding the implementation of its Artificial Intelligence (AI) law on April 6, 2023. The DCWP will begin enforcement of the AI law on July 5, 2023. The AI law restricts employers’ and employment agencies’ use of Automated Employment Decision Tools (AEDT) with regard to screening candidates or employees for employment decisions. Employers that use AEDT must:
- Subject the tool to a bias audit within one year of the tool’s use,
- Make information about the bias audit publicly available, and
- Provide notice to employees or applicants about their use of the tool.
The Final Rule defines terms, clarifies how bias audits can comply with the law, clarifies the specifics of how the employer must publish the results of the bias audit, recites requirements for notice to employees and applicants, and clarifies additional obligations for employers and employment agencies.
When determining if their use of AI triggers compliance with the law, employers should take into account the following elements of the definition of AEDT:
- It is a computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence.
- The process results in simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for hiring and promotions.
An employer must publish the date the employer first used the AEDT and a summary of the results of the bias audit on their website. The final rules state that the summary must contain “the source and explanation of the data used to conduct the bias audit, the number of individuals the AEDT assessed that fall within an unknown category, and the number of applicants or candidates, the selection or scoring rates, as applicable, and the impact ratios for all categories.” The auditor must be independent and not have been involved with the use, development, or distribution of the AEDT.
Violations are subject to a civil penalty of $375 for the first offense and $500 to $1,500 per subsequent offense or day of uncorrected violation.
How:
- Review your use of AEDT and work with legal counsel to determine if that triggers the need to comply with the AI law.
- Create or update your policies and processes to comply with the audit and notice requirements.
Additional Resources:
Who: New York employers
When: Effective immediately
On April 11, 2023, the New York State Department of Labor released an updated sexual harassment model policy and updated training materials. The agency drafted the new model in consultation with the New York State Division of Human Rights. The materials give more details that help employers and employees better understand employees’ rights in the workplace.
The updated materials give more information about gender identity, bystander intervention, and harassment of remote workers. They also provide more examples of scenarios of gender-based discrimination and clearly explain that the harassment need not be severe or pervasive to be illegal.
Employers may use the new training video to meet all minimum requirements except for the interactive portion, which could be a Q&A session or group discussion. The materials include a training assessment form, which employees need to complete and turn in to a supervisor. Employers need to keep a copy of the completed form for recordkeeping purposes.
If employers use something other than the state’s training model, the training must meet or exceed the state’s requirements. New York’s Combating Sexual Harassment website now includes a toolkit for workers and employers and updated FAQs. The agency added the toll-free confidential hotline, 1-800-HARASS-3, to the Combating Sexual Harassment in the Workplace website, policy, training materials, employee toolkit, and FAQs.
Employers must provide the Sexual Harassment Model Policy to all new hires and at the annual training. They can provide the notice to remote employees by posting it in a shared network and emailing it directly to all employees. Employers must also give employees a copy of the policy annually during the training.
How:
- Review the new materials and update your policy and training materials to comply with the law.
- Provide the Sexual Harassment Model Policy to all new hires and at the annual training.
- Post the Sexual Harassment Prevention poster.
- Provide training to employees once a year.
Additional Resources:
Minimum Standards for Sexual Harassment Prevention Policies
New York State Combating Sexual Harassment in the Workplace Website
New York State Model Sexual Harassment Policy and Training Website
Who: New York employers with warehouse distribution centers
When: Effective June 19, 2023
Governor Kathy Hochul signed A1000/S851 into law on March 3, 2023, which amended the Warehouse Worker Protection Act (WWPA). The WWPA was supposed to be effective February 19, 2023, but the effective date was pushed to June 19, 2023. The law requires employers at warehouse distribution centers to notify employees of quota systems the employer uses to track, monitor, and discipline workers. The purpose is to inform workers of how an employer is evaluating their performance.
Employers must provide employees a written description of each applicable quota or work standard—in English and the employee’s primary language—upon hire or within 30 days of the law’s effective date. Employers have two business days to notify employees of changes to the quota.
An employee may request their own work speed data and the aggregate data of similar employees, and the employer must provide it within 14 days.
The law amended the definitions of employer, employee, and warehouse distribution center. An employee under the WWPA is one who is non-exempt and is not a driver or courier. Employer is defined as one who employs or exercises control over 100 or more employees at a single distribution center or 1,000 or more employees at one or more centers in New York. The definition of warehouse distribution center was amended to exempt farm product warehouses.
Employers must maintain records that allow for compliance with requests from employees or the commissioner for three years.
The law protects employees against adverse employment action if the employer did not disclose the quota or if the employer did not allow for sufficient breaks. It also creates a rebuttable presumption of retaliation in situations where the employer takes an adverse employment action with 90 days of an employee’s first request in a calendar year for work speed data or making a complaint alleging a violation of the WWPA.
How:
- Create written descriptions of all quotas, and provide descriptions of quotas to employees by July 19, 2023.
- Develop a system to collect, compile, store, and share work speed data for individuals and peer groups.
- Write a procedure for complying with requests for work speed data.
- Train supervisors and employees who have authority to implement the provisions of the Warehouse Worker Protection Act.
- Consult with legal counsel to ensure compliance.
Additional Resources:
Who: New York employers
When: Effective June 7, 2023
Governor Kathy Hochul signed amendments to New York State’s Nursing Mothers in the Workplace Act into law on December 9, 2022, effective June 7, 2023. It applies to all employers, regardless of size. Employers must provide lactating employees daily paid or unpaid break time to express milk for up to three years following the birth of a child. The nursing mother may take a lactation break “each time such employee has reasonable need to express breast milk.”
Upon request by a lactating employee, an employer must designate a room or area that is in close proximity to the employee’s work area, shielded from view, well lit, and free from intrusion by other persons while the employee is using it. The room can’t be a restroom or toilet stall.
The designated room must have a chair, nearby access to clean running water, a working surface, and an electrical outlet. Employers must provide access to refrigeration to store milk (if the workplace has access to refrigeration). Employers must notify all employees when the room has been designated for lactation.
The New York Department of Labor will release a model policy that covers the rights of nursing mothers to express breast milk in the workplace. Employers must provide the policy notice to all new hires, once a year to all employees, and to all employees when they return to work after having a child.
The policy will also include information on how employees can request a room or area to express milk. Employers must respond to employees’ requests within five business days.
Employers that can prove undue hardship must still make a reasonable effort to provide a location close to the employee’s work area—other than a restroom or toilet stall—where the employee can express breast milk in private. The law requires a “cooperative dialogue” to identify accommodation that meets the employee’s needs.
Employers may not discriminate or retaliate against those employees that choose to exercise their rights under the law.
How:
- Post a notice regarding employee rights, or provide it in writing via your employee handbook or a policy.
- Monitor the New York Department of Labor website for a model policy.
- Review your lactation break policies and procedures and update as needed to comply with the law.
- Identify a room or location at the worksite that complies with the law.
- Train supervisors on the requirements of the amended law.
Additional Resources:
Who: New York City employers
When: Effective April 15, 2023
The New York City Department of Consumer and Worker Protection postponed the effective date of the New York City Automated Employment Decision Tools Law (AEDTL) from January 1, 2023, to April 15, 2023, in order to have a second public hearing in response to a high volume of comments on the December 2022 revisions to the proposed rules. AEDTL prohibits employers from using automated employment decision tools (AEDTs) (i.e., artificial intelligence) when making employment decisions about applicants and current employees.
The law was clarified to state that it applies only to AEDTs that result in employment decisions made a) that rely exclusively on a simplified output, b) where a simplified output is one of several criterion used but outweighs any other factors being considered, and c) using a simplified output to overrule conclusions derived from other factors, including human decision making. If the AEDT modifies conclusions derived from other sources, including human decision-making, the law does not apply.
Employers must notify applicants 10 days in advance if they plan to use automated technology tools to make employment decisions. They cannot use the tool if it has been more than a year since it has passed a bias audit conducted by an independent auditor. The amendment also modified the calculation of a scoring rate and impact bias.
Employers that don’t comply with the law may be fined up to $500 for a first violation, and up to $1,500 per subsequent violation.
How:
- Monitor for updates from the Department of Consumer and Worker Protection.
- Review your data-retention policies related to data collected by AEDTs.
- Review your existing use of automated technology in hiring and promotion practices to determine if it is covered by the law.
- Communicate with your vendors who operate AEDTs to ensure they are in compliance with the law.
- Plan how you will meet the independent audit and notice requirements of the law.
- Train HR personnel, managers, and supervisors on the provisions of the new law.
Additional Resources:
Who: Public and private New York State employers with more than 50 full-time employees
When: Effective immediately
All public and private New York State employers with more than 50 full-time employees must post the new Veterans’ Benefits and Services poster in the workplace and give employees access to it electronically, effective January 1, 2023. Electronic distribution can be on a company website or via email. Employers must also notify employees that the poster is available electronically.
The poster contains information on legal services, tax benefits, education, workforce and training resources, and mental health and substance abuse resources, as well as sexual assault and domestic violence hotline numbers.
How:
- Post the New York Veterans Benefits and Services Poster in the workplace and provide it to employees on your website or via email.
- Notify employees that the poster is available electronically.
Additional Resources:
Veteran Benefits and Services Poster
New York State Department of Labor Veteran Benefits and Services Website
Who: Albany County, New York employers
When: Effective March 9, 2023
Albany County, New York has enacted a pay transparency law, Local Law “E,” that goes into effect on March 9, 2023. The new law amends the Albany County Omnibus Human Rights Law. Employers must list the minimum and maximum salary or hourly wage that they “in good faith” believe they would pay when advertising a job, promotion, or transfer opportunity. The purpose is to prevent discrimination in employment and unequal pay.
Job postings for temporary employment at a temporary staffing firm are exempt from this law. The New York State pay transparency law that goes into effect September 2023 does not preempt or supersede any provisions of the Albany County local law.
How:
- Complete a pay equity audit before setting salary ranges for job postings.
- Review your internal policies and update them as needed to comply with the law.
- Train HR personnel, supervisors, and managers on how to comply with the law.
Additional Resources:
Who: New York State employers
When: Comments due by February 11, 2023
The New York Department of Labor published a model sexual harassment policy and is seeking public comment from January 12, 2023, to February 11, 2023, before releasing a final version. The agency drafted the new model in consultation with the New York State Division of Human Rights, which gives more details to help employers and employees better understand employees’ rights in the workplace. It expands on gender identity, bystander intervention, and remote workers. It also provides more examples of scenarios of gender-based discrimination. The agency states that it is committed to ensuring the model policy reflects the evolution of the world of work. The agency will review the New York Sexual Harassment Policy every four years.
The agency is revising its training videos on sexual harassment prevention. Employers must provide training once a year to employees.
How:
- Monitor for the release of the final model policy.
- Familiarize yourself with the changes and incorporate them into your sexual harassment prevention policy.
- Monitor for the updated training to be released.
Additional Resources:
Proposed Sexual Harassment Policy for All Employers in New York State
New York Model Sexual Harassment Prevention Policy Comment Submission Site
Who: New York State employers
When: Effective February 19, 2023
New York Governor Kathy Hochul signed Senate Bill S1958A on November 21, 2022, which takes effect February 19, 2023, and amends New York Labor Law Section 215. It states that employers may not discipline, punish, or discriminate or retaliate against employees for taking a lawful absence pursuant to federal, local, or state law.
Employers may not assess points, demerits, occurrences, or any other points, or deduct from an allotted bank of time for such an absence. Violators may be assessed civil penalties of up to $10,000 for a first violation and $20,000 for subsequent violations, plus liquidated damages, front pay, restitution for lost compensation, and reinstatement.
How:
- Update all leave policies to comply with the law.
- Provide notice of the updated policies to all employees.
- Train HR personnel, managers, and supervisors on the law.
Additional Resources:
Who: New York State employers
When: Effective immediately
Governor Kathy Hochul signed A0795 into law on December 16, 2022, which amends New York Labor Law Section 201. In recognition of the fact that more and more employees are working away from the jobsite, the law requires employers to provide an electronic version of mandatory workplace postings to employees, including federal and industry-specific posters.
The employer can email the posters to employees or post them on the company website. Employers must still physically post posters in the workplace as well. Employers must advise employees that the posters are available electronically. Employers that do not comply may be fined.
How:
- Post electronic versions of the posters to your company intranet or email them to employees.
- Notify employees of the availability of electronic posters.
- Update your employee handbook with the notification.
Additional Resources:
Who: New York employers
When: Effective January 1, 2023
New York has amended its Paid Family Leave to include an updated definition of covered family members, an increase in the maximum weekly benefits, and a decrease in the employee contribution rate, effective January 1, 2023. The program allows eligible employees to take up to 12 weeks of job-protected time off to care for a new child, care for a family member with a serious health condition, or for qualifying exigencies related to military service.
Covered family members now include biological or adopted siblings, half-siblings, and step-siblings, which means employees may take time off to care for siblings who have a serious health condition.
The weekly paid family leave benefit is increasing in 2023 to a maximum of $1,131.08, which is 67% of the 2023 New York State average weekly wage.
The employee contribution rate will decrease to 0.455% of gross wages per pay period, with a $399.43 maximum annual contribution for 2023.
Employees are eligible to take the leave if they regularly work 20 or more hours per week after 26 consecutive weeks of employment or regularly work fewer than 20 hours per week after 175 working days.
How:
- Update your paid family leave policies and documentation to comply with the law.
Additional Resources:
New York Employee Notice of Paid Family Leave Payroll Deduction Form
New York Paid Family Leave Updates for 2023
New York State Paid Family Leave At a Glance 2023
New York Paid Family Leave Employer Resources Model Language for Employee Materials
New York Paid Family Leave Statement of Rights
New York Employee Notice of Paid Family Leave Sibling Care for 2023
2022 News
New York HR News
Who: New York City employers with four or more employees
When: Effective immediately
New York City’s pay transparency went into effect on November 1, 2022, which applies to employers with four or more employees. Contractors and owners are included in the employee count for purposes of this law. Remote positions are covered by this law—any job that “can or will performed, in while or in part, in New York City, whether from an office, in the field, or remotely.” Employers are not forced to post every job and may hire without posting the availability of the position.
Employers must provide the compensation range on all job advertisements, promotions, and transfer opportunities posted in any medium. Covered postings include written descriptions publicized to a pool of potential applicants, which is presumed to include current employees. “Compensation range” means the lowest to highest amounts the employer believes in good faith are applicable at the time of the job posting. Employers may publish a set compensation amount for the job if no range exists.
Only current employees may file an action for noncompliance. The law contains an anti-retaliation provision. There will be no penalty for the first violation if it is corrected within 30 days, but the violation does count against the employer. For second and subsequent violations, employers face civil penalties of up to $250,000 per violation, plus monetary damages to affected individuals.
How:
- Review and update pay ranges for job descriptions for covered jobs you intend to advertise.
- Update job-posting procedures as needed.
- Revise currently posted positions to include pay ranges.
Additional Resources:
New York City Salary Transparency in Job Advertisements Fact Sheet
Who: Westchester County, New York employers
When: Effective November 6, 2022
Effective November 6, 2022, the Westchester County, New York, pay transparency law will apply to employers with four or more employees. Employers must disclose a minimum or maximum salary for a job, promotion, or transfer in the job posting or advertisement. The salary must be one that the employer believes in good faith it would pay at the time of the posting.
The rule applies to any written printed or digital communication about a particular position for which an employer or employment agency is recruiting and accepting applications. There is an exception for general “Help Wanted” signs that don’t specify a position and are affixed to the worksite or place of employment.
The law applies to any position that requires the employee to perform work, in whole or in part, in the county and includes remote work, work performed in person, and work performed in the field.
How:
- Identify your salary ranges for each position.
- Review your job posting policies and update as needed to comply with the law.
Additional Resources:
Who: New York employers
When: Comments due by September 20, 2022
What: The New York Department of Labor is soliciting feedback from New York employers on its sexual harassment prevention policy by September 20, 2022. By law, the New York Department of Labor and Division of Human Rights must evaluate the sexual harassment prevention policy and guidance this year and every four years thereafter, and update them as needed.
How:
- Submit comments by September 20, 2022.
- Continue to monitor for updates.
Additional Resources:
New York Model Sexual Harassment Prevention Policy Feedback
Who: New York state employers
When: Effective immediately
What: On August 3, 2022, New York Governor Kathy Hochul passed a budget for the $1.2 billion Health Care and Mental Hygiene Worker Bonus Program. Healthcare providers, including qualified health care and mental hygiene practitioners, technicians, assistants, support staff, and aides, will be paid up to $3,000 in total bonuses over two vesting periods. Employees must have a title that’s on the list of Eligible Worker Titles, have been employed for at least six months, and earn less than $125,000 per year in annual base salary to qualify.
Qualified employees or independent contractors who work:
- 20 to 30 hours per week are eligible for a bonus of $500.
- 30 to 35 hours per week are eligible for a bonus of $1,000.
- 35 or more hours per week are eligible for a bonus of $1,500.
Vesting periods are series of consecutive six-month periods between October 1, 2021, through March 31, 2024. A qualified employee is eligible for up to two vesting periods per employer, with a maximum total bonus of $3,000. The purpose of the bonus is to help retain talent, attract new talent, and reward those that work in the healthcare industry.
Employers must submit information about employees who qualify for the first vesting period bonus on the HWB Program Portal by September 2, 2022. The first vesting period is October 1, 2021, through March 31, 2022.
Reporting deadlines for the subsequent vesting periods are October 31, 2022, May 1, 2023, October 1, 2023, and May 1, 2024. An employer must pay a bonus to the employee within 30 days of the employer receiving the bonus funds from the state.
Employers who do not comply by identifying and paying bonuses to at least 90% of eligible employees may be fined up to $1,000 per violation.
How:
- Determine which workers are eligible and track hours worked for the first two vesting periods in which the employee is eligible for a bonus.
- Become familiar with the required employee attestation forms.
- Create a communication plan to inform employees about the availability of bonuses.
- Submit information about employees who qualify for a bonus in the first vesting period on the HWB Program Portal by September 2, 2022.
- Monitor for further guidance from the State Department of Health.
Additional Resources:
Part ZZ of New York’s 2022-2023
New York State Health Care and Mental Hygiene Worker Bonus (HWB) Program
Who: New York State employers
When: Effective immediately
What: On July 19, 2022, Governor Kathy Hochul announced a new wage theft hotline at 833-910-4378. New York State employees can use the hotline to report wage theft to the New York Department of Labor. The hotline has interpreters available for non-English speaking employees. In tandem, the state has developed an online tool to confidentially report and track wage theft.
How:
- Inform employees about the new hotline.
Additional Resources:
Who: New York State employers
When: Effective immediately
What: New York State legislation (A2035B) established a confidential, toll-free hotline individuals can use to report workplace sexual harassment. The hotline was launched on July 19, 2022: 1-800-HARASS-3 (1-800-427-2773). It is operated by the New York State Division of Human Rights and staffed by pro bono attorneys.
How:
- Monitor the New York Department of Labor for release of the poster, policy, and training materials that include the hotline number.
- Ensure that your workplace posters, anti-harassment policies, and other anti-harassment materials include the new hotline number.
Additional Resources:
Who: New York private employers
When: Effective immediately
What: New York passed SB S2628, the Employee Privacy Law, on November 8, 2021, and it became effective on May 7, 2022. It specifies that private employers may electronically monitor telephone conversations or transmissions, electronic mail or transmissions, and Internet access or usage, but they must first provide formal notice directly to employees. Employers must also provide such notice to new employees upon hire, who must acknowledge receipt electronically or in writing. In addition, employers must give general notice by posting it in a conspicuous place where employees who are subject to electronic monitoring will see it.
The law does not provide a private right of action; it is enforced by the state attorney general. Civil penalties for noncompliance range from $500 to $3,000 per violation, with a maximum of $500 for the first offense, $1,000 for the second offense, and $3,000 for subsequent offenses.
How:
- If your monitoring triggers an obligation to provide notice under the law, post the notice of electronic monitoring in the workplace, and provide it to new hires.
- Update your employee privacy policies and HR handbook to include the notice.
Additional Resources:
Who: New York employers
When: Effective July 14, 2022
What: New York State’s A2035B legislation establishes a toll-free confidential hotline for complainants of workplace sexual harassment. The New York Division of Human Rights will staff the hotline with pro bono attorneys, effective July 14, 2022.
The New York State Division of Human Rights and the New York Department of Labor will update all related sexual harassment material to include the toll-free confidential hotline.
How:
- Monitor the New York State Division of Human Relations or New York Department of Labor for the release of the sexual harassment poster, policy, and training materials that include the released sexual harassment hotline, and update your materials.
Additional Resources:
A02035 (Sexual Harassment Hotline)
Who: New York City employers with 4 or more employees
When: Effective November 1, 2022
What: On March 24, 2022, New York City passed Int 0134-2022 to amend the pay transparency law in New York City. It requires that job postings, including those for promotions or transfer opportunities within the city, must include salary ranges. The effective date has been extended to November 1, 2022, from May 15, 2022.
An amendment to the original law states that the law does not apply to “[p]ositions that cannot or will not be performed, at least in part, in the city of New York.” That cannot be interpreted as exempting remote positions, however, even when posted by employers outside of New York City.
Other amendments that will take effect November 1, 2022, are as follows:
- Clarification that the law applies to salaried and hourly positions;
- A 30-day warning for employers to address a first violation before facing a penalty;
- A provision that only current employees of an organization can sue the employer for violating the law; and
- A prohibition against general “help wanted” ads with no specifics about position or salary range.
The City will publish additional guidance for employers.
How:
- Document salary ranges for each job classification.
- Update your job posting policies to comply with the law.
- Ensure your managers are trained on the new law. The New York City Commission on Human Rights will provide training.
Additional Resources:
New York City Salary Transparency in Job Advertisements Fact Sheet
Who: New York State employers
When: S5870 and A2483B effective immediately; A2035B effective July 14, 2022
What: On March 16, 2022, Governor Kathy Hochul signed into law three bills that amend the New York Human Rights Law and add protections for workers against sexual harassment and discrimination: A2035B, S5870, and A2483B. A2035B establishes a toll-free, confidential hotline—staffed by pro bono attorneys—that employees can use to report workplace sexual harassment. The New York Division of Human Rights will provide the hotline effective July 14, 2022. The agency will also add information about the hotline to required workplace posters and sexual harassment materials.
S5870 is effective immediately and prohibits the release of employee personnel records in retaliation against an employee for opposing a practice prohibited under the Human Rights Law, filing a complaint, or testifying or assisting in a proceeding. Employees who are victims of retaliation have the right to file a complaint.
A2483B is effective immediately and updates the definition of employer to include state and public employers. Private, state and public employers are subject to the provisions of the Human Rights Law.
How:
- Update your retaliation and personnel-file policies to comply with the law.
- Train human resources personnel and managers on the new provisions of the law.
- Update your anti-sexual harassment materials and training materials to include the sexual harassment hotline.
- Monitor the New York State Department of Human Relations (NYSDHR) and New York Department of Labor for poster updates. Post in the workplace when available.
- Update your settlement and separation agreements and other documents to comply with the law.
- Continue to monitor for the passage of additional bills that may affect anti-discrimination laws.
Additional Resources:
A02035 (Sexual Harassment Hotline)
A2483B (State & Public Employers)
Who: New York City employers with four or more employees
When: Effective May 15, 2022
What: On December 15, 2021, the New York City Commission on Human Rights passed Int. 1208-2018-B, which amends the New York City Human Rights Law (NYCHRL). The law became effective on January 15, 2022, and goes into effect on May 15, 2022. It requires New York City employers to post the minimum and maximum salary range when advertising a job, promotion, or transfer opportunity, including internal job postings. Employers are to use “good faith” when determining the minimums and maximums they will pay. The law promotes pay transparency and pay equity.
Currently, the law applies to positions located in New York City and to employers who had four or more employees at any time in the prior year, including full-time and part-time employees, contractors, and interns. The law does not apply to temporary positions advertised by temporary agencies.
Individuals may file a complaint with the New York City Commission on Human Rights or in court. Courts may award injunctive relief, punitive damages, or other remedies. The New York City Commission on Human Rights may prescribe education, up to a $125,000 civil penalty, or up to a $250,000 penalty for a willful violation.
The New York City Commission on Human Rights plans to provide additional guidance and training on the new law.
On March 24, 2022, the New York City Commission on Human Rights introduced Int. 134, which may alter the effective date of and clarify the law.
How:
- Identify minimum and maximum salaries for existing and upcoming job postings.
- Update postings with the required salary information.
- Update your policies, templates, and HR manual to comply with the law.
- Ensure your HR personnel and hiring managers are up to date on the law.
- Monitor the New York City Commission on Human Rights website for forthcoming related regulations.
Additional Resources:
Who: New York employers
When: Effective immediately
What: New York’s whistleblower protection law went into effect on January 26, 2022, and the New York State Department of Labor recently released the related model employee notice. Employers must immediately post the notice in an easily accessible and well-lit area frequented by employees and applicants. The poster informs employees and applicants of their rights, protections, and obligations under Section 740 of the New York Labor Law.
How:
- Immediately post the required employee notice.
Additional Resources:
New York State Posting Requirements
New York Notice of Employee Rights, Protections, and Obligations Under Labor Law Section 740
Who: New York employers
When: Effective immediately
What: On December 22, 2021, the New York State Department of Labor (NYSDOL) released its final regulations regarding New York State Paid Sick Leave (PSL) (see Consolidated Laws of New York, Chapter 31, Article 6, Section 196-B). That law required employers to start accruing sick leave on September 30, 2020 and allowed employees to start using sick leave at the beginning of 2021.
The final regulations, along with public comments by the NYSDOL, clarify paid sick leave and related requirements and several lingering questions. One of those was how to determine employer “size,” because that governs how much sick leave an employer must give. The NYSDOL stated that when counting employees, employers must count all of the employees nationwide—not just those working in New York state.
Employers must carry over all unused sick leave to the following calendar year, without limitation, and even when an employer frontloads available sick leave at the beginning of the year. The NYSDOL stated that employers may choose to:
- Give employees the option to carry over unused sick leave or use and receive payment for paid sick leave prior to the end of a calendar year; or
- Only allow employees to carry over unused sick leave.
The law stated that employers may ask the employee for documentation or attestation if an employee takes three or more days of sick leave. The agency said it will publish a template for employee attestations in the future. It also stated that employers may not deny sick leave while attempting to confirm the basis for the leave or when an employee cannot obtain medical documentation as the basis for leave due to cost.
The NYSDOL stated that employers may not require advance notice of the need to use sick leave, even when it’s for a foreseeable reason, such as a medical appointment.
The final rules require employers to accrue sick leave on a fractional basis to account for all time worked. To calculate accrual, employers may round to the nearest five minutes, one-tenth of an hour, or a quarter of an hour. Employers must accrue one hour of leave for every 30 hours worked unless the employer frontloads the paid sick leave.
Employers are not required to give employees notice of their rights under this law.
Note that some of the NYSDOL rules and clarifications conflict with the New York City Earned Sick and Safe Leave Act (aka Paid Safe and Sick Leave Law).
Employers should also note that the final regulations confirm that a failure to provide required sick leave is equivalent to a failure to pay wages.
How:
- Review and update your paid sick leave policies to comply with the new rules, and consult competent employment counsel where necessary.
- Ensure internal payroll personnel and external payroll providers comply with the record-keeping and notification requirements.
- Train managers, supervisors, and HR personnel on the new rules.
Additional Resources:
Who: New York private employers
When: Effective January 26, 2022
What:
New York Governor Hochul signed Senate Bill 4394 into law, which amends Section 740 of the New York Labor Law to protect whistleblowers further. Effective January 26, 2022, the new law:
- Covers more individuals than before;
- Expands safeguards for employees;
- Broadens the definition of retaliation;
- Creates employee reporting requirements;
- Requires an employee notice; and
- Increases potential damages.
Previously, the law applied to current employees. The amended law protects current and former employees, plus independent contractors. In addition, the statute of limitations for filing a claim has been extended from one to two years.
Existing law protects employees who report an actual violation of a safety statute or regulation when such violation poses a substantial and specific danger to public health or safety. The amended law expands protection to those who disclose or threaten to disclose any information about said danger or about practices or activities the employee “reasonably believes” violate a law, executive order, judicial or administrative decision, ruling, or order. Additionally, the employee is covered if they:
- Give information to a public body;
- Testify before a public body;
- Object to the subject policy or practice; or
- Refuse to participate in said practice.
The definition of retaliation has changed under the new law. It adds protection against threatened as well as actual adverse employment actions. It covers discharge, suspension, demotion, or other adverse employment action—as before—and adds to the list of prohibited actions:
- Any conduct that could adversely affect a former employee’s current or future employment; and
- Contacting immigration authorities about the employee or an employee’s family member.
Existing law requires employees to report a violation to the employer before disclosing it to a public body. The amended law states that the employee must only make a “good faith” effort to notify the employer first. And in some cases, the employee can bypass the employer notification requirement altogether:
- If the employee believes there is an imminent and serious danger to public health or safety;
- When the employee believes the report will result in the employer concealing or destroying evidence;
- When the employee believes the report will result in the employer harming the employee; or
- If the employee believes the employer knows about the violation and will not correct it.
Employers must post a notice in the workplace that explains employees’ protections, rights, and obligations under the new law. The New York Department of Labor will issue a model notice before January 26, 2022.
Existing law allows a plaintiff to seek several remedies: injunctive relief; reinstatement; compensation for lost wages, benefits, and other remuneration; and reasonable costs and attorney’s fees. The amended law adds the option for a jury trial, front pay in lieu of reinstatement, and assessment of punitive damages of up to $10,000.
How:
- Review your written policies to ensure compliance with the law.
- Review your procedures related to retaliation claims and internal complaints and update as needed.
- Train HR personnel, managers, and supervisors about receiving and escalating whistleblower complaints.
- Consider contacting legal counsel when employees report violations.
- Monitor for the employee notification poster on the New York Department of Labor website and post in a conspicuous location in the workplace when available.
Additional Resources:
