Client Alerts

Increases to NYS Minimum Wage/Salary Rates

As the year end quickly approaches, we recommend that you review your your employee’s compensation levels and make any necessary adjustments to comply with changes to the New York State Minimum Wage Orders that will take effect on January 1, 2024.  As you may have heard, both the minimum wage rate and the minimum salary for exempt employees in New York State will be increasing, along with several other rates and credits set forth in the New York State Minimum Wage Orders.  Below we identify some of the major changes that you should be aware of as the end of the year approaches.

Minimum Wage

Effective January 1, 2024, the minimum hourly rate of pay for the four regions of New York State will be as follows:

NYC Large Employers (more than 10 employees)NYC Small Employers (10 or fewer employees)Remainder of Downstate (Nassau, Suffolk and Westchester counties)Remainder of State (Outside of NYC, Nassau, Suffolk and Westchester counties)
$16.00$16.00$16.00$15.00

This represents a $1.00 per hour increase to the minimum wage for all employees in New York State, except employees in New York City and Nassau, Suffolk and Westchester counties, and an $0.80/hour increase to the minimum wage for employees located in all other areas of New York State.  If you currently have employees in New York City, Nassau, Suffolk and Westchester counties earning less than $16.00 per hour you must adjust those rates to meet or exceed $16.00 on or before January 1, 2024.  If you currently have employees outside of New York City, Nassau, Suffolk and Westchester counties earning less than $15.00/hour, on or before January 1, 2024, you must adjust those rates to meet or exceed $15.00/hour. 

Minimum Salary for Exempt Employees

Beginning on January 1, 2024, the minimum weekly salary required for all employees who are classified as Exempt from overtime under the administrative or executive exemption in New York State is increasing as follows:

NYC Large Employers (more than 10 employees)NYC Small Employers (10 or fewer employees)Remainder of Downstate (Nassau, Suffolk and Westchester counties)Remainder of State (Outside of NYC, Nassau, Suffolk and Westchester counties)
$1,200.00$1,200.00$1,200.00$1,124.20

This represents an increase to the minimum salary for all exempt employees in New York State.  To be classified as exempt, employees in New York City, Nassau, Suffolk and Westchester counties must receive a weekly salary of no less than $1,200.00.  Employees in the remainder of New York State (outside of New York City, Nassau, Suffolk and Westchester counties), will have to be paid a salary of at least $1,124.20/week to be classified as Exempt. 

For employees currently earning less than these weekly rates of pay, the employer may either elect to increase the rate of pay or, alternatively, convert the employee to a non-exempt hourly rate of pay, and pay the employee overtime at the rate of 1.5 times his/her regular rate of pay for all hours worked in excess of 40 hours in a workweek. 

Tip Credit for Hospitality Industry Food Service Employees

The increase in the minimum wage will also impact the tip credit for employers in the hospitality industry who take a tip credit against the minimum wage for food service employees. Beginning January 1, 2024, employers in New York City, Nassau, Suffolk and Westchester counties will be required to pay food service employees a cash wage of at least $10.65 per hour, with tips in the amount of $5.35 per hour making up the difference of the $16.00 per hour minimum wage.

Beginning January 1, 2024, employers in all other areas of New York State (outside of New York City, Nassau, Suffolk and Westchester counties) will be required to pay food service employees a cash wage of at least $10.00 per hour, with tips in the amount of $5.00/hour making up the difference of the $15.00/hour minimum wage. 

Region of New York State Where Employee is EmployedMinimum Wage Cash WageTip CreditTotal
NYC Large Employers (more than 10 employees) – Minimum Cash Wage$10.65/hour$5.35/hour$16.00/hour
NYC Small Employers (10 or fewer employees) – Minimum Cash Wage$10.65/hour$5.35/hour$16.00/hour
Remainder of Downstate (Nassau, Suffolk and Westchester counties) – Minimum Cash Wage$10.65/hour$5.35/hour$16.00/hour
Remainder of State (Outside of NYC, Nassau, Suffolk and Westchester counties) – Minimum Cash Wage$10.00/hour$5.00/hour$15.00/hour  

Miscellaneous Changes

In addition to the items set forth above, there are also several other changes to less common allowances and credits that will take effect on January 1, 2024.  These include changes to:  

  • Charges for employer provided meals, lodging and utilities;
  • Payments to employees for the maintenance and laundering of uniforms;
  • Tip credit for employees outside of the hospitality industry; and
  • Tip credit for service employees in the hospitality industry.

If any of these situations apply to you, you can find additional information about them here https://dol.ny.gov/system/files/documents/2023/09/mw-orders-update-9.20.23.pdf and under the link from this page to the proposed regulatory text, or you may contact the SJA attorney with whom you normally work for additional information. 

Employers are reminded to issue updated wage notices to any employee whose hourly rate of pay or salary is being adjusted.

NY Law Prevents Forced Company Ownership of Employees’ Off Duty Inventions

New York joined many other states in prohibiting companies from requiring employees to assign all inventions designed in an employee’s off duty time, to their employer.  The governor signed legislation last week to add Section 203-f to the New York State Labor Law.  The new law bans the enforcement of invention assignment agreements or provisions in employment contracts that entitle companies to intellectual property developed by their employees on their own time, without use of the employer’s equipment, supplies, facilities, or trade secret information.  The new law, effective immediately, includes exceptions for when workers’ off-hours creations possess a demonstrable link to their day jobs.  The text of the bill follows:

Section  1.  The labor law is amended by adding a new section 203-f to read as follows:

Section 203-F. Inventions Made by Employees.

1.  Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:

(A)  Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research of development of the employer; or

(B)  Result from any work performed by the employee for the employer.

2.  To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision one of this section, such provision is against the public policy of this state and shall be unenforceable.

Section 2.  This act shall take effect immediately.

We suggest that our clients update their existing intellectual property related employment agreements and any templates to be used in the future and modify them to narrow the scope of any assignment of invention provisions to comply with the law.  Specifically, the provisions should clearly limit the assignment to only those inventions that, at the time of conception or reduction to practice, relate to the employer’s business, or relate to actual or anticipated research or development of the Company and any inventions that result from work performed by the employee for the employer.  Employers that maintain overly broad assignment of invention provisions risk having the entire provision deemed unenforceable.

New York Legislation Prohibiting Non-Compete Agreements with Employees

On June 7, 2023 the New York State Senate passed legislation banning workplace non-competition agreements between employees and employers in New York. We fully expect that New York Gov. Hochul will sign this legislation, perhaps very soon. This new law, when enacted, will impose a blanket ban on employee non-competition agreements in New York.  There is a limited carve-out—an “exception”—which is discussed below—but essentially this new law will make it unlawful to impose on employees any agreement or clause that “prohibits or restricts” a covered employee “from obtaining employment after the conclusion of employment.” 

The limited “carve out” or “exception” from this new legislation does not apply to agreements that “establish [ ] a fixed term of service or prohibit [ ] disclosure of trade secrets, disclosure of confidential and proprietary client information, or solicitation of clients of the employer that the individual learned about during employment.”  Thus, an employer can still include in employment agreements protection for trade secrets and confidential and proprietary client information and also will continue to be able to include “non-solicit” clauses in employment agreements.  As has previously been the law, clauses prohibiting the solicitation of customers after the termination of employment must be sufficiently narrow in “time” and “geographical” scope to be enforceable. Such clauses also must expressly exclude customers that the employee brought to the new employer—a requirement known of as the “BDO Seidman exception.”

Notably, the new legislation also includes an additional clause as to the exception which permits protection of confidential information and permits non-solicit clauses that limits this exception by stating in very ambiguous terms the following: “provided that such agreement does not otherwise restrict competition in violation of this section.” Thus, there likely will be litigation and confusion over the meaning of this exception. We expect this clause will make non-solicit clauses more difficult to enforce and will require more documented support for restrictions intended to protect confidential and proprietary client information and trade secrets.

This new law does not apply retroactively. Therefore, it will not affect existing contracts but will only apply to employment agreements and non-competes entered into thirty days after the Governor signs the legislation.  As to contracts entered into at any time after the effective date of this new law, it is important to note that the law creates a private cause of action for employees in Section 191-d(4) of the New York Labor Law, which enables an individual to bring a civil action against any employer or person alleged to have violated this new law. While one would think there might be no damages for such a cause of action since the non-compete clause would be unenforceable, an employee could possibly claim that the clause caused the individual to fail to accept an offered position, thereby causing monetary damages.  In any event, this private cause of action also provides for liquidated damages of up to $10,000.00 per violation, injunctive relief and compensatory damages, including lost compensation and attorney’s fees and costs. Thus, there is significant risk if an employer does not take action—after the legislation becomes effective—to ensure that any employee agreements are in full compliance, the employer can incur liability. There is a time limitation for employees to bring such lawsuits. Specifically, any lawsuit brought under Section 191-d(4) must be brought within two years after the later of: (i) when the prohibited non-compete was signed; (ii) when the covered individual learns of the prohibited non-compete; (iii) when the employment or contractual relationship is terminated; or (iv) when the employer takes any steps to enforce the non-compete agreement.

NYS Pay Transparency Law to Require Compensation Range in Job Advertisements

On December 21, 2022, New York Gov. Hochul signed the New York State Pay Transparency Law.  The law, which is scheduled to take effect on September 17, 2023, will require all job postings to contain the compensation or range of compensation for the posting and to include a job description for the position where such a job description exists.  

The law specifically requires that the compensation or range of compensation be included in any advertisement for a job, promotion, or transfer opportunity.  The law applies to both external advertisements and advertisements for promotion or transfer opportunities that are posted internally and are open to current employees of the employer.  “Compensation or range of compensation” is defined as the “minimum and maximum annual salary or hourly range of compensation for a job, promotion, or transfer opportunity that the employer in good faith believes to be accurate at the time of the posting of an advertisement for such opportunity.” For positions that are compensated entirely on a commission basis, the employer can satisfy the requirement by including a statement that compensation will be based on commissions.

The law applies to employers with four or more employees, including employment agencies or recruiters, but does not apply to temporary help firms.[1]  Because the law applies to all jobs that that can or will be performed, at least in part, in New York State, is appears to apply to remote positions that can be performed by an employee who resides in New York State, even where the employer does not have a physical presence in New York State. 

In addition to the compensation or range of compensation, the law requires that when a job description for the position advertised exists, the job description must be included in the advertisement.   

The law has a recordkeeping requirement which requires employers to maintain records of the history of compensation ranges for each job, promotion or transfer opportunity and the job description for each such position, if such job descriptions exist. 

There is no private right of action under the Pay Transparency Law, but any person claiming to be aggrieved by a violation of the law can file a complaint with the New York State Commissioner of Labor.  The Commissioner of Labor can assess civil penalties of up to $3,000 per violation.  The law also prohibits employers from refusing to interview or hire or otherwise retaliating against any individual who exercises their rights under the statute.

It is anticipated that the Commissioner of Labor will promulgate rules and regulations necessary to effectuate the provisions of the law.  While we are awaiting those rules and regulations, employers are advised to prepare to comply with Pay Transparency Law by taking the following steps:

  • Review your current compensation ranges for each position with an eye toward developing an appropriate compensation range for each position;
  • Determine whether your current compensation levels need to be adjusted to maintain current employees and/or recruit new employees for those positions;
  • Review your existing job descriptions and update them as necessary for accuracy and thoroughness.
  • Update any job posting forms or templates to include the compensation range as a mandatory field and the job description as mandatory field (if available); and
  • Educate human resources personnel, recruiters and hiring managers on the requirements of the Pay Transparency Law so they are prepared to comply when the law becomes effective. 

[1] “Temporary help firms” are defined as business which recruits and hires its own employees, and assigns those employees to perform work at, or services for, other organizations, to support or supplement the other organization’s workforce or to provide assistance in special work situations such as, but not limited to, employee absences, skill shortages, seasonal workloads, or to perform special assignments or projects.

Labor Law Amended to Prohibit Retaliation for Legally Protected Absences

On November 21, 2022, New York Gov. Hochul signed legislation amending Section 215 of the New York State Labor Law, making it a violation of the Labor Law for any employer to “discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because such employee has used any legally protected absence pursuant to federal, local or state law.”  This prohibition against taking an adverse action against an employee for using job protected leave, in and of itself, is nothing new.  Indeed, the legislation granting the job protected leave generally prohibits employers from retaliating against employees for exercising their rights under the law and utilizing the leave.  What is remarkable about this legislation is that it specifically takes aim at “no-fault attendance policies,” by making it clear that to threaten, penalize, or in any other manner discriminate or retaliate “includes assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include, but not be limited to, failure to receive a promotion or loss of pay.”  

Employees in New York State have a right to job protected leave under several statutes including the Federal Family and Medical Leave Act, the Americans with Disabilities Act, and the Uniformed Service Employment and Reemployment Rights Act.  In addition, New York State law provides additional job protected leave under the Paid Family Leave Act, New York State/City sick/safe leave laws, COVID-19 leave legislation and New York laws requiring time off for jury duty and time to vote, just to name a few. This amendment to Section 215 of the New York Labor Law makes it clear that employers may not count time off taken for any of these reasons under a no-fault attendance policy. 

In addition, this statutory amendment permits New York State to assess fines against employers who violate this anti-retaliation provision.  An employer can be assessed a fine of up to $10,000 for the first violation of Section 215 of the New York Labor Law, and up to $20,000 for each subsequent violation. 

This amendment is scheduled to take effect on February 20, 2023.  Employers utilizing no-fault attendance policies are advised to review their policies now to ensure that, as written and as applied, the policies do not count as occurrences any protected absences.  Where necessary, revised policies should be implemented prior to February 20, 2023. 

Required Workplace Postings Must Now Be Provided Digitally in NY

On December 16, 2022, New York Gov. Hochul signed legislation requiring all employers with employees in New York to provide digital versions of all required workplace postings. The legislation, which took effect immediately, amended New York Labor Law Section 201, which has long required employers to maintain certain postings in the workplace in a “conspicuous place on each floor of the premises.”   Required postings have included postings notifying employees of the New York State minimum wage, protections against discrimination in the workplace, workplace health and safety requirements, availability of workers compensation and statutory disability benefits, and unemployment benefits and other topics covering workers’ rights. Traditionally, employers have maintained these required postings on bulletin boards in locations where employees tend to congregate, such as break and rest areas, and near time clocks. 

The new legislation amends Section 201 of the New York Labor law to now require that employers:

  • maintain digital versions of legally required workplace postings; and
  • make the digital versions of the legally required workplace postings available through the employer’s website or by email; and
  • provide notice to all employees that the documents required for physical posting are also available electronically. 

In addition, Section 201 of the New York Labor Law now provides that, in addition to the documents required to be posted by the New York Labor Law, the electronic posting and notice requirement also applies to “all other documents required to be physically posted at a worksite pursuant to state or federal law or regulation.”

This law applies to all employers in New York State, regardless of size. Thus, it applies to businesses with at least one employee.  The law does not address what, if anything, is required of businesses that do not maintain a website and do not provide their employees with email.

Employers are advised to take the following steps as soon as possible:

  • Review and update all required workplace postings;
  • Ensure that physical postings are up to date and displayed in the workplace;
  • Prepare electronic versions of all required postings;
  • Determine the method by which electronic postings will be made available to employees; and
  • Provide written notice to all employees of the manner in which electronic notices will be provided and, where applicable, the electronic location where employees can access the required postings.  

As a starting point, a list of New York State postings requirements can be found here: https://dol.ny.gov/posting-requirements-0

The Federal Department of Labor’s website contains a tool that employers can use to identify postings required by the Federal Labor Laws. https://www.dol.gov/general/topics/posters  Please note that posting requirements vary by statute and this tool only addresses the statutes enforced by the U.S. Department of Labor.  Other federal statutes not enforced by the U.S. DOL  (i.e. Title VII, ADA, ADEA, USERRA, INA, etc.) may also have posting requirements. 

NYS to Require Notice to Employees of Monitoring of Electronic Communications

There is new legislation that will require employers with a place of business in New York, that monitor employees’ telephone calls, e-mails or internet use, to provide written notice to employees of this monitoring activity and to obtain a written acknowledgement of receipt of the notice from employees.  This law amends the New York State Civil Rights law and will take effect on May 7, 2022.

The new law requires all private employers, regardless of size, to provide written notice to employees “upon hiring” if they monitor or intercept employee electronic communications.  This includes any monitoring or interception of telephone calls, e-mail communications and internet usage. The notice must be in writing (or in an electronic form) and receipt must be acknowledged by the employee.  The notice must contain, at a minimum, the following:

Any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.

There is no requirement that employers provide notice and obtain acknowledgements from current employees.  The notice should be provided as part of the hiring/onboarding process.

The law does not address whether this notice must be provided in standalone document, or whether including it in an employee handbook will suffice.  Therefore, we recommend that if the notice is included in an employee handbook, at a minimum, the employee be required to execute a separate acknowledgment of receipt that specifically acknowledges receipt of the electronic monitoring notice.

In addition, the law requires that the employer post this notice of electronic monitoring in the workplace in a conspicuous place that is readily accessible to all employees.  We recommend that you post the notice in the place that you post all of your other legally required postings.

The law does not apply to computer system maintenance/protection processes deployed to assist with the management of type or volume of incoming or outgoing e-mail, telephone voice mail, or internet usage. Additionally, by specifically limiting the law to the monitoring or interception of “telephone, e-mail and internet usage,” it appears the law does not require notice of video surveillance or GPS/location tracking.

This law does not prohibit monitoring of employees’ telephone calls, e-mails or internet usage.  Employers retain the right to monitor these activities.  This is simply a requirement to notify employees of the surveillance.  The stated objective of this law is to increase transparency to help avoid invasion of privacy lawsuits.

There is no private right of action under the law.  The New York Attorney General will enforce this law. Penalties include a maximum civil penalty of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.

Employer Obligations under the New Cannabis Law

The newly created Office of Cannabis Management just issued facts sheets related to cannabis that may be of interest to your business.

One fact sheet is directed towards employers and can be found at:   https://cannabis.ny.gov/system/files/documents/2021/05/cannabis_management_fact_sheet_4-21_employer.pdf

Another is directed towards local governments. https://cannabis.ny.gov/system/files/documents/2021/05/cannabis_management_fact_sheet_4-21_local_government.pdf

What is in the Law?

Overview

On March 31, 2021, Governor Andrew Cuomo signed the Marihuana Regulation & Taxation Act (MRTA) legalizing adult-use cannabis (also known as marijuana, or recreational marijuana) in New York State. The legislation creates a new Office of Cannabis Management (OCM) governed by a Cannabis Control Board to oversee and implement the law. Employers are required to adhere to standards established in the MRTA. The law is not intended to limit the authority of an employer to establish policies and procedures prohibiting employees from being impaired by cannabis in the workplace, and employers are not required to engage in any conduct that would otherwise violate federal law or cause the employer to lose federal funding. The information below is a collection of key provisions from the MRTA which impact employers and workplace conduct. For additional information or to contact the Office of Cannabis Management, please visit our website at: www.cannabis.ny.gov or e-mail us at: info@cannabis.ny.gov.

Workplace Policies

Employers may create policies which prohibit employees from performing employment duties while impaired by cannabis.

Protections for Medical Use

Employees certified as patients in the Medical Cannabis Program must be treated as having a “disability” and are protected from discriminatory action based solely on their status as medical cannabis patients.

Unlawful Employer Conduct

Pursuant to Section 201-d of the Labor Law, it is unlawful for an employer to refuse to hire, employ, or license someone, or to discharge an employee or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment, as a result of an individual’s use of cannabis in accordance with state law outside of work hours, off of the employer’s premises, and without use of the employer’s equipment or other property.

Lawful Employer Conduct

Employers can prohibit an employee from engaging in cannabis use and take action related to the use of cannabis, under the following circumstances:

  • Where an employer is required to do so by state or federal statute, regulation, ordinance, or other state or federal government mandate.
  • Where an employee is impaired by the use of cannabis while working and such impairment decreases or lessen the employee’s performance, or interferes with an employer’s obligation to provide a safe and healthy workplace.
  • Where the employer’s actions would require such employer to commit an act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

NY HERO Act

The NY HERO Act (New York Health and Essential Rights Act) covers all employers, regardless of size—except governmental employers. As discussed below, there are special rules for employers who have ten (10) or more employees. This update is written assuming that the chapter amendments officially become law.

Employers’ work sites include any physical space, including a vehicle that has been designated as the location where work is performed. “Work site” does not include an employee’s home unless provided by the employer, so remote workers’ homes are not covered.

There are two (2) parts to the Act.

PART 1

Part 1—the New York Department of Labor (“DOL”) has to develop a model airborne infectious disease exposure prevention standard for all work sites, differentiated by industry, and to establish minimum requirements for preventing exposure to airborne infectious diseases in the workplace.  In establishing these minimum requirements, the labor commissioner is tasked with developing protocols to address the following topics: (1) employee health screenings; (2) face coverings; (3) personal protective equipment (PPE) required by industry and at the employer’s expense; (4) hand hygiene; (5) cleaning and disinfecting of shared work equipment and surfaces (i.e. telephones and doorknobs); (6) social distancing protocols; (7) mandatory or precautionary isolation or quarantine orders; (8) engineering controls; (9) assignment of enforcement responsibility of the safety plan and federal, state, and local protocols to one or more supervisory employees; (10) compliance with employee notice requirements; and (11) verbal review of standards, policies and employee rights.

The DOL must develop these industry-specific policies by July 4, 2021 (most likely July 5 since that is a Monday). We believe that these will be similar to the COVID industry-specific policies New York already has. Employers will then have until August 3, 2021 to either adopt the model plan or develop their own. If they develop their own plan, they must consult with collective bargaining representatives. If it is a non-union shop, the plan must be developed with employee participation and be customized to incorporate industry-specific hazards and worksite consideration.

Employers must include the policy in an employee handbook if they have one. The plan must be included in new hire paperwork. The plan must be posted at each work site in English and the employees’ respective primary languages (if there is a model policy in that language). Employers have until September 2, 2021 to post the plan and include it in their handbook. Employers must also verbally go over the plan with employees. Employers do not need to review the plan verbally with temporary employees, independent contractors or delivery personnel who are employed by another company.

As expected, employers cannot discriminate or retaliate against employees for exercising their rights under this law and for “refusing to work where such employee reasonably believes, in good faith, that such work exposes him or her, or other workers or the public, to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws, rules, policies, orders of any governmental entity, including but not limited to, the minimum standards provided by the model airborne infectious disease exposure prevention standard, provided that the employee, another employee, or employee representative notified the employer of the inconsistent working conditions and the employer failed to cure the conditions or the employer had or should have had reason to know about the inconsistent working conditions and maintained the inconsistent working conditions.”

Fine and penalties apply: There are civil penalties of not less than $50 per day for failure to adopt the plan and not less than $100 per day for failure to follow the plan. If multiple violations in 6 years, the minimum penalties increase to not less than $200 per day for failure to adopt the plan and not less than $1,000 per day for failure to follow the plan, capped at $20,000. Injunctive relief is also available.

Employees also have a private right of action against employers including injunctive relief and reasonable attorney’s fees. There are liquidated damages available up to $20,000 unless the employer proves a good faith basis to believe that the established health and safety measures were in compliance with the applicable airborne infectious disease standard. It is believed that the Act will be soon amended to (a) eliminate the liquidated damages provision but not the penalties; and (b) prior to filing suit, require employees to provide their employer with notice of the violation to allow the employer thirty (30) days to cure the violation.

Where an action brought by an employee under the provisions of this section, or a defense, counter-claim, or crossclaim brought by an employer in response thereto, is found upon judgment to be completely without merit in law and undertaken primarily to harass or maliciously injure another, the court may in its discretion impose sanctions against the attorney or party who brought such action, defense, counterclaim or crossclaim. The attorney provision could provide some collectability.

PART 2

Part 2—only applies to employers of 10 or more employees or who have an annual payroll of over $800,000 and a workers’ compensation experience modification rating of more than 1.2.

As of November 1, 2021, employees may create a “joint labor-management workplace safety committee.” This committee has specific rights:

  1. Two-thirds of the committee are to be non-supervisory employees selected by and from non-supervisory employees. If unionized, the collective bargaining representative will select the employees. The employer shall not interfere with the selection of employees who shall serve on the committee.
  2. The committee shall be authorized to perform the following tasks:
    • Raise health and safety concerns to which the employer must respond.
    • Review the adoption of any policy in the workplace regarding employee safety.
    • Participate in any site visit by any governmental entity.
    • Review any report filed by the employer related to health and safety in the workplace.
    • Regularly schedule a meeting during work hours at least once a quarter.

Employers shall permit safety committee designees to attend a training, without suffering a loss of pay, on the function of worker safety committees, rights established under this section, and an introduction to occupational safety and health.

The committee must be co-chaired by a supervisory employee and a non-supervisory employee.

If the work sites are “geographically distinct,” separate committees may be formed.

The chapter amendments provide that employers must pay for up to two (2) hours per meeting and up to four (4) hours per training.

Please note that employers just need to allow these committees to be formed. They do not have to proactively create them.

Again, as expected, employers cannot discriminate or retaliate against employees for exercising their rights under this law and for participating in this committee. The same penalties apply as in Part 1.

NYS Requires Employers to Provide Paid Time Off for Employees to Receive COVID-19 Vaccination

On March 12, 2021, Governor Cuomo signed into law legislation which provides employees in New York State with paid time off to receive the COVID-19 vaccine.  The law took effect immediately.  Under the new law, New York State employers must provide employees with up to four (4) hours of paid time off per COVID-19 vaccination. The law will remain in effect until December 31, 2022 when it is scheduled to sunset.

Under the law, employees are entitled to paid time off in an amount not to exceed four (4) hours per COVID-19 vaccine injection.  The paid time off must be paid at the employee’s regular rate of pay, and employers may not require the use of any other leave time available to the employee (i.e. sick leave, vacation, PTO).

The law does not require employers to pay employees for time spent receiving a COVID-19 vaccination outside of their regularly scheduled working hours.

The law also prohibits employers from discriminating or retaliating against employees who take this leave.

The law applies to all public and private employers in New York State, regardless of size or number of employees.

The law does not address whether it should be applied retroactively to employees who took time off for a COVID-19 vaccination prior to March 12, 2021.  However, employers should ensure that any employee who has requested time off since March 12, 2021, has been paid (up to four (4) hours) and that their leave accruals have not been charged.

The law is also silent as to the documentation employers may require from employees seeking this leave, if any.  Employers who choose to require documentation, should consider the need to maintain that information confidentially as an employee medical record.

If you have not done so already, you should:

  • Ensure that all managers are aware of the right to the leave and of the prohibition against discrimination and retaliation.
  • Confirm that no employee has been required to use their accrued paid time off for leave to obtain a COVID-19 vaccination since March 12, 2021.
  • Implement a method to track the number of times this leave is taken by each employee and the number of hours taken each time.
  • Determine whether you will require employees to submit proof of vaccination and ensure that any proof submitted is maintained in the strictest of confidence as an employee medical record.

The New York State Department of Labor issued guidance in the form of answers to frequently asked questions to assist in administering this leave.  The questions and answers may be found here: https://dol.ny.gov/system/files/documents/2021/03/cd6.pdf

Summary Of Recent NYSDOL Guidance On The Use Of New York State COVID-19 Sick Leave

In March 2020, the NYS Legislature passed legislation requiring employers with employees in New York State to provide job protected leave to employees when the employee is subject to a mandatory or precautionary order of quarantine issued by the New York State Department of Health, a local board of health or any other governmental entity duly authorized to issue such an order related to COVID-19.  The amount of job protected leave required and whether the leave must be paid is determined by employer size and net income as follows:

  • Employers with 10 or fewer employees and net income of less than $1 million – unpaid sick leave for the period of the order of quarantine.  Employees will also be eligible for paid family leave and disability benefits.
  • Employers with 10 or fewer employees and net income of $1 million or more – 5 consecutive calendar days of paid sick leave and unpaid sick leave for the remainder of the period of the order of quarantine.  Employees will be eligible for paid family leave and disability leave benefits during the unpaid period of the leave.
  • Employers with 11 to 99 employees 5 consecutive calendar days of paid sick leave and unpaid sick leave for the remainder of the period of the order of quarantine.  Employees will be eligible for paid family leave and disability leave benefits during the unpaid period of the leave.
  • Employers with 100 or more employees – 14 consecutive calendar days of paid sick leave and unpaid leave for the remainder of the period of the quarantine order.

Shortly thereafter, guidance was issued clarifying that the paid leave entitlements of 5 or 14 days were 5 or 14 “consecutive calendar days.”  Thus, employees subject to a mandatory or precautionary quarantine are eligible for paid leave for a period of 5 or 14 consecutive calendar days.  Employees need only be paid for those days during that 5 or 14 consecutive day period, which they would normally have been scheduled to work.

On January 20, 2021, the New York State Commissioner of Labor issued additional guidance on the use of this COVID-19 sick leave.  This guidance contains several important details which, may require employers to change the manner in which they are administering this leave.

First, and most significantly, the guidance explains that a single employee may be eligible for the full paid leave entitlement on more than one occasion.  An individual may be subject to a mandatory or precautionary order of quarantine due to exposure to an individual who tested positive for COVID-19.   In this case, the individual would be entitled to job protected sick leave as set forth above, even if this individual does not test positive him/herself.  If, at a later date, the same employee actually tests positive he/she will once again be subject to a mandatory order of quarantine and will be entitled to the job protected sick leave set forth above for a second time.  To receive this second entitlement to sick leave the employee must submit documentation from a licensed medical provider or testing facility demonstrating that the employee tested positive for COVID-19.

In addition, where an employee has tested positive for COVID-19 and is subject to a mandatory order of quarantine, but continues to test positive for COVID-19 at the conclusion of the initial quarantine period, the employee will be deemed subject to a second order of mandatory quarantine and will be entitled to the job protected sick leave set forth above once again.

Thus, an employee may be eligible for the NYS COVID-19 job protected sick leave on one, two or three separate occasions as follows:

  • ONE LEAVE –
    • Employee tests positive and has recovered at the end of the initial quarantine period (1); or
    • employee is required to quarantine due to exposure to an individual who tested positive, but does not test positive him/herself (1).
  • TWO LEAVES –
    • Employee is required to quarantine due to exposure to an individual who tested positive, but does not test positive him/herself (1).  In the future the same employee tests positive for COVID-19 (2).
    • Employee tests positive for COVID-19 (1) and at the end of the mandatory quarantine period the employee is still testing positive for COVID-19 (2).
  • THREE LEAVES –
    • Employee is required to quarantine due to exposure to an individual who tested positive, but does not test positive him/herself (1).  In the future the same employee tests positive for COVID-19 (2).  At the end of the initial quarantine period the same employee is still testing positive for COVID-19 (3).

The guidance makes is clear that in no case shall an employee be eligible for more than 3 periods of entitlement to COVID-19 sick leave.  It also makes clear that the second and third period of entitlement must be based on a positive COVID-19 test.

The guidance also states that if an employer requires an employee who is not subject to a mandatory or precautionary order of quarantine to stay out of work due to exposure or potential exposure to COVID-19 (whether that exposure/potential exposure occurred in or out of the workplace) the employer must pay the employee at the employee’s regular rate of pay until such time as the employer permits the employee to return to work or until such time as the employee becomes subject to a mandatory or precautionary order of quarantine.  Once the employee becomes subject to a mandatory or precautionary order of quarantine, the employee will then begin receiving COVID-19 sick leave (paid or unpaid) as set forth above.  The pay for the time that the employer requires the employee who is not subject to a mandatory or precautionary order of quarantine to stay out of work is not considered part of or counted against the employee’s COVID-19 sick leave entitlement.

Finally, the guidance provides that there is no requirement under the law that employees returning to work (with the exception of nursing home employees) test negative for COVID-19 prior to returning.  There is no explicit prohibition on employers requiring employees to test negative prior to returning to work. However the guidance notes that it is not recommended that employees be required to test negative prior to discontinuing quarantine and returning to work.  However, given this updated guidance, an employer who requires such a negative test prior to allowing an employee to return to work will be required to pay the employee for any period of time following the conclusion of the mandatory or precautionary quarantine and the time the employee is permitted to return to work by the employer.

Importantly, this COVID-19 sick leave entitlement is in addition to the annual Sick/Safe leave requirement (of 40 or 56 hours, depending on employer size) for employees in New York, which took effect on January 1, 2021.

Updated New York State Paid Sick Leave Guidance

The New York State Department of Labor has released a list of answers to questions relating to the New York State Paid Sick Leave legislation, which takes effect on January 1, 2021.  The FAQ is available here: https://www.ny.gov/sites/ny.gov/files/atoms/files/PSL_FAQ_PaidSickLeaveFAQ.pdf
 
 

New York State Sick Leave Law Signed Into Law

On April 3, 2020, New York Governor Andrew Cuomo signed the 2021 budget into law.  The 2021 budget included an amendment to the labor law (N.Y. Lab. § 196-b [2020]) to require New York employers to provide sick leave to their employees.  Notably, governmental agencies and public sector employers are not subject to the New York sick leave law.  The New York sick leave law takes effect on September 30, 2020.

Amount of Sick Leave

The New York sick leave law requires private sector employers of all sizes to provide paid or unpaid sick leave to their employees based on the employer’s size and net income.

Employer CategoryMinimum Leave Requirement
Those with 4 or fewer employees and net income of less than $1 million in the previous tax year40 hours of unpaid sick leave per year
Those with 4 or fewer employees and net income of more than $1 million in the previous tax year40 hours of paid sick leave per year
Those with 5 to 99 employees40 hours of paid sick leave per year
Those with 100 or more employees56 hours of paid sick leave per year

For purposes of determining the number of employees in a calendar year, the calendar year is defined as starting on January 1 and ending on December 31.

For all other purposes, including for purposes of accruing and using paid sick leave, the law defines “calendar year” to mean either: (1) the 12 month period from January 1 through December 31; or (2) a regular and consecutive 12 month period as defined by the employer.

Employees shall earn one hour of sick leave for every 30 hours worked.  Employers may also provide employees the full amount of sick leave at the beginning of the year, however, it should be noted that if an employee does not work enough hours to have otherwise qualified for the amount of leave provided, employers may not later reduce the amount of sick leave previously granted.

Accrual

Under the New York sick leave law, sick leave will begin to accrue on September 30, 2020 or the start date of employment, whichever is later, but cannot be used until January 1, 2021.  In years following 2021, employees may use sick leave immediately upon accrual.  Any unused accrued sick leave shall be carried over to the following year, however, employers may limit the use of sick leave to the required minimum amounts accrued in any given year as outlined in the chart above.  Employers are not required to pay any unused sick leave to an employee who has been separated from employment for any reason.

Permissible Usage

An employee may take sick leave for the following reasons:

  • For the mental or physical illness, injury, or health condition of the employee or the employee’s family member, regardless of whether a diagnosis has been made or whether medical care is required at the time of the request;
  • For the diagnosis, care and treatment or the need for the diagnosis, care and treatment of a mental or physical illness, injury or health condition of the employee or the employee’s family member, or preventive care for such employee or employee’s family member;
  • For the employee or employee’s family member who is a victim of domestic violence, a family offense, sexual offense, stalking or human trafficking as needed to:
  • Obtain services from a domestic violence shelter, rape crisis center or other services program;
  • Participate in safety planning, relocating, or to take other actions to increase the safety of the employee or the employee’s family member;
  • Meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
  • File a complaint or domestic incident report with law enforcement;
  • Meet with a district attorney’s office;
  • Enroll children in a new school; or
  • Take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those associated with or working with the employee.

The law defines “family member” as an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent and the child or parent of an employee’s spouse or domestic partner.  “Parent” is defined as an employee’s biological, foster, step- or adoptive parent or legal guardian or a person who stood in loco parentis when the employee was a minor.  And “child” is defined as biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Employers may not require the disclosure of confidential information relating to the employee’s request for sick leave as a condition to providing such sick leave.  For those employers required to provide paid sick leave, an employee shall be compensated at their regular rate of pay for all sick leave used.  Employers may require a reasonable minimum increment of sick leave that an employee may take in any given day.  This minimum cannot exceed 4 hours.

Job Protection

Additionally, employees are entitled to job protection when using sick leave.  Upon return to work following sick leave, an employee shall be restored to their position of employment with the same pay and other terms and conditions of employment. Under the New York sick leave law, it is also unlawful to discharge, threaten, penalize or in any other manner discriminate or retaliate against any employee who takes sick leave.

Documentation

Employers must track accrual and usage and must keep such records for a period of not less than 6 years.  Additionally, upon an employee’s request, an employer must provide the amount of sick leave accrued and the amount of sick leave used to an employee within 3 business days of their request for such information.

Variations in Sick Leave

Employers are not required to provide additional sick leave under this law if the employer already has a policy providing for sick leave which meets or exceeds the requirements of the New York sick leave law including the accrual, carryover and use requirements.

Further, the law is not intended to prevent cities with populations of one million or more from enacting or enforcing local laws or ordinances which meet or exceed the requirements of the New York sick leave law.  For example, both Westchester County and New York City both currently have earned sick and safe leave laws that shall remain in effect.

Employers and unions may agree in a collective bargaining agreement entered into on or after September 30, 2020, that, in lieu of the statutorily required paid sick leave, covered employees will be provided with a comparable benefit in the form of paid days off, including leave, compensation and/or other employee benefits or a combination thereof.  Additionally, unions are permitted to negotiate sick leave benefits for their members that are different from the benefits provided by the law.  In both cases where a different benefit is provided for an employee covered by a collective bargaining agreement, the collective bargaining agreement must specifically acknowledge the New York sick leave law.

We expect the New York State Department of Labor will issue additional regulations and/or guidance prior to September 30, 2020, the effective date of the new sick leave law.  In the interim, employers should determine how much sick leave they will be required to provide to their employees and decide whether employees will be required to accrue the sick leave or whether the sick leave will be front loaded.  In addition, employers should ensure that they have a reliable method of tracking accrual and use of sick leave.  Employers with collective bargaining agreements should review those agreements to ensure that they provide a benefit equal to or greater than that required by the statute and, where that is not the case, arrange to meet with the bargaining agent for their employees to either renegotiate the sick leave benefit or enter into an agreement with the Union to provide for a different benefit, ensuring that any such agreement specifically references the New York State paid sick leave law.

NY Shield Act Expands Data Security Laws

This legislation is an expansion of New York’s data security requirements.  It amends both the NY General Business Law and the NY Technology Law to require business who maintain private information of NY residents to take certain steps to ensure that the electronic data they maintain is properly safeguarded from unauthorized access and expanding the requirement that business notify any NY resident whose information has been accessed or acquired with valid authorization.    The law applies not only to employee information (where the employees are residents of NY) but also to private information of non-employees that the business may have (i.e. customers who are NY residents).  So, while there is an employment component, the law is much broader.

Private information includes:

  • Social security number
  • Driver’s license number or non-driver identification card number
  • Financial account number, credit or debit card number and security code/access codes/passwords to the same
  • Biometric data (fingerprint, voice print, retina or iris image or other unique physical representation of biometric data)
  • Username or email address in combination with a password or security question answer that would permit access to an online account

The law requires any person or business that owns or license computerized data which includes private information of a resident of NY to “develop, implement and maintain reasonable safeguards to protect the security confidentiality and integrity of the private information including, but not limited to disposal of the data.”  N.Y. Gen. Bus. Law Section 899-BB 2 (2020).

Business that are currently complying with data security requirements of the Federal Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act or the NYS Department of Financial Services’ Cybersecurity Requirements for Financial Services Companies, will be deemed to be in compliance with the SHIELD Act.

For businesses not regulated by one of those statues, the law says that they must:

  1. Implement a data security program that includes “reasonable administrative safeguards” such as the following in which the business:
  1. Designates one or more persons to coordinate the security program;
  2. Identifies reasonably foreseeable internal and external risks;
  3. Assesses the sufficiency of safeguards in place to control the identified risks;
  4. Trains managers and employees in the security program practices and procedures;
  5. Selects service providers capable of maintaining appropriate safeguards and requires those safeguards by contract; and
  6. Adjusts the security program in light of business changes or new circumstances.

N.Y. Gen. Bus. Law Section 899-BB 2 (A)(1) through (6)(2020).

2. Implement reasonable technical safeguards such as the following in which the business:

  1. Assesses risk in network and software design;
  2. Assesses risk in information processing, transmission and storage;
  3. Detects, prevents and responds to attacks or system failures; and
  4. Regularly tests and monitors the effectiveness of key controls.

N.Y. Gen. Bus. Law Section 899-BB 2 (B)(1) through (4)(2020).

3. Implement reasonable physical safeguards such as the following in which the business:

  1. Assesses risks of information storage and disposal;
  2. Detects, prevents and responds to intrusions;
  3. Protects against unauthorized access to or use of private informant during or after the collection, transportation and destruction for disposal of the information; and
  4. Disposes of private information within a reasonable amount of time after it is no longer needed for business purposes by erasing electronic media so that the information cannot be read or reconstructed.

N.Y. Gen. Bus. Law Section 899-BB 2 (C)(1) through (4)(2020).

A “small business” will be deemed to be in compliance with the requirements listed above if the small business’s security program contains reasonable administrative, technical and physical safeguards that are appropriate for the size and complexity of the small business, the nature and scope of the small business’s activities and the sensitivity of the personal information the small business collects from or about consumers.  A “small business” is defined as  (1) fewer than 50 employee; (2) less than three million dollars in gross annual revenue in each of the last 3 fiscal years or (3) less than five million dollars in year-end total assets, calculated in accordance with generally accepted accounting principles. N.Y. Gen. Bus. Law Section 899-BB 2 (c)(2020).

The requirements set forth above take effect on March 21, 2020.

The law also requires any person or business which owns or licenses computerized data which includes private information to “disclose any breach of the security of the system following discovery or notification of the breach in the security system, to any resident of New York State, whose private information was or is reasonably believed to have been accessed or acquired by a person without valid authorization.    This provision took effect on October 23, 2019.

There is no private right of action under the law – meaning a NY resident or an employee cannot bring a claim against a business directly.  N.Y. Gen. Bus. Law Section 899-BB 2 (e)(2020).  However, the NY Attorney General can bring an action against a business and can recover penalties equal to $20 for each failure to provide the required notification or $5,000, whichever is greater, with a maximum statutory penalty of $250,000.

It would be wise to consult with the company’s IT provider to discuss compliance with this legislation.

Update On New Sexual Harassment Requirements For New York State Employers

New York State has passed some fairly significant requirements with respect to sexual harassment in the workplace.  Our firm’s co-founder, Ginger Schroder, had a newsletter update on the requirements published in The Milestone Press, a Legal Examiner affiliate. Learn more about the details of this critical new legislation here: https://milestone.legalexaminer.com/legal/urgent-update-on-new-sexual-harassment-requirements-for-new-york-state-employers/