New York employers must be aware of several important changes to employment laws that have already come into effect during 2022, those that have imminent effect (with deadlines just around the corner!), and those that are currently being considered by the Legislature. In this post, we highlight some of the latest developments in employment law that New York employers should be prepared for.
Laws Already in Effect:
- New York Paid Family Leave (“PFL”) Amendments: These amendments came into effect on January 1, 2022, and clarified that when PFL is taken intermittently, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week. The regulations initially capped intermittent PFL at 60 days. This cap has been removed, allowing for additional days of intermittent PFL for employees who work an average of more than five days per week. The law also increases the new maximum weekly benefit for PFL to $1,068.36 for 2022. The maximum annual contribution for 2022 is $423.71.
- Whistleblowing and Retaliation Protection and Notice Requirements: This law came into effect on January 26, 2022, and increases coverage for employees who allege they have been retaliated against for reporting suspected wrongdoing. The legislation broadens the scope of private-sector whistleblower protections previously limited to claims of health care fraud and the reporting of health and safety concerns. The law requires employers to post a notice regarding employees’ rights under Section 740 of the New York Labor Law (which applies to whistleblowing generally); it also requires health care employers to post a notice regarding employees’ rights under Section 741 of the New York Labor Law (which applies to whistleblowing in the context of health care employment).
- New York State Human Rights Law (“NYSHRL”) Protection Against Retaliatory Practice: This law came into effect on March 16, 2022. The law makes it an unlawful retaliatory practice for an employer to disclose an employee’s personnel files because the employee has opposed any practices forbidden under the NYSHRL or filed a complaint, testified, or assisted in any proceeding under the NYSHRL or any other judicial or administrative proceeding. The law does permit employers to disclose personnel files when commencing or responding to a complaint in judicial or administrative proceedings.
Laws With Imminent Effect:
- New Electronic Monitoring Notice Requirements: This law goes into effect on May 7, 2022, and requires NYS employers to provide notice to an employee upon hire where the employer “monitors or otherwise intercepts” telephone calls, emails, or internet usage or access using “any electronic device or system.” The notice must be in writing or sent electronically and employees must acknowledge receipt in writing or electronically. Employers should also post an electronic monitoring notice in a place readily available for viewing by employees subject to electronic monitoring.
- State Division of Human Rights and State Department of Labor Hotline: By July 14, 2022, the State Division of Human Rights must work with the NYS Department of Labor to establish a toll-free, confidential hotline to provide counsel and assistance to individuals with concerns of workplace sexual harassment. Employers will be required to include the hotline number in any sexual harassment postings and policies.
- NYC Salary Listings in Job Positions: This law was supposed to go into effect on May 15, but on April 28, the City Council voted to push the effective start date to November 1 in order to afford employers more time to come into compliance. The law will require most NYC employers advertising job openings for positions performed in NYC to include the minimum and maximum salary range offered for the position. More specifically, it makes it an unlawful discriminatory practice under the New York City Human Rights Law (“NYCHRL”) for an employer to advertise a job, promotion, or transfer opportunity without stating the position’s minimum and maximum salary in the advertisement. Under the law, advertisements are expansive and can include internal descriptions, social media posts, job fairs, bulletin boards, and more, including any job that would be performed in NYC(in whole or in part, whether from an office, in the field, or remotely from the employee’s home). Note that postings are covered regardless of whether employers are seeking full- or part-time employees, interns, domestic workers, independent contractors, or any other category of worker protected by the NYCHRL. As amended, the law that will come into effect on November 1 will prevent fines for first-time violations if the employer corrects the problem within 30 days. Otherwise, the fines are stiff and can penalize employers up to $250,000 for willful behavior. Therefore, while NYC employers now have some extra time to get into compliance, they should be sure to update their job advertisements and related procedures before November 1.
Bills Under Consideration:
- Senate Bill 766 – No Rehire Provisions: This bill would render the release of claims in a settlement agreement between an employer and employee and/or independent contractor unenforceable if the agreement contains a no-rehire clause. These clauses are commonly included in separation and release agreements to prohibit the employee from applying for or accepting future employment with the employer and its related entities. Under this bill, if a release is rendered unenforceable by the inclusion of a no-rehire provision, the employer would remain bound by all other provisions of the agreement. The bill would not prohibit termination of the employee if mutually agreed upon as part of a settlement or automatically require an employer to rehire an employee who had previously settled a case against the employer.
The bill passed the New York State Senate on March 1, 2022, but has yet to pass the Assembly or be signed into law. If enacted, the law would take effect on the 60th day after being signed and would apply to all agreements entered into on and after that date.
- Senate Bill 738 – Nondisclosure Provisions in Settlement Agreements: This bill would:
- Render unenforceable a release of any claim of discrimination, harassment, or retaliation if a release included in a settlement agreement requires the aggrieved worker to pay liquidated damages for violation of a nondisclosure clause or requires the aggrieved worker to forfeit all or part of the consideration for violation of a nondisclosure clause. Such a release would also be rendered unenforceable if itcontains any statement or disclaimer that the aggrieved employee was not subject to discrimination, harassment, or retaliation.
- Require employers to notify employees that an employee can also speak with the New York Attorney General (in addition to notifying employees that they are not prohibited from speaking with law enforcement, the EEOC, the state or local commission on human rights, or an attorney). Without such notification, a provision in an agreement between an employer and employee is void if it prevents the disclosure of information related to discrimination
- Clarify that employees can voluntarily agree to a nondisclosure provision before the current 21-day waiting period has elapsed. This pertains to New York’s current prohibition against employers including nondisclosure provisions in agreements settling discrimination/harassment/retaliation claims unless the provision is the complainant’s preference, the provision is set forth in writing, and the complainant is given 21 days to consider and seven days to revoke the agreement.
- The bill passed the New York State Senate on March 1, 2022, but has yet to pass the Assembly or be signed into law. If passed, the law would take effect immediately upon singing and would apply to all agreements entered into on or after that date.
Bottom Line for Employers
Given the volume and impact of these newly enacted laws and soon-to-be effective laws, New York employers should: (a) review and revise their handbooks and policies to ensure compliance; (b) ensure that their workplace posters and notices are up to date; and (c) start to update their NYC job advertisements. Employers should also keep an eye on the bills under consideration to ensure timely compliance with those requirements if/when they go into effect. Should you have any questions, the BakerHostetler Labor & Employment team is here to help.