New York Employers Cannot Afford To Drop The Ball This New Year – Whistleblowing

The beginning of the new year is a good time to review your
policies and practices to make sure they are up-to-date with the
laws referenced in this Alert.

In 2022, New York state and New York City continued to enact
critical labor and employment laws that directly affect businesses
of all shapes and sizes. Employers should familiarize themselves
with these new laws and update their policies to stay
compliant.

Pay Transparency in Job Advertisements

New York City’s pay transparency law (summarized in a prior
Alert), which amended the New York
City Human Rights Law, went into effect on November 1,
2022, and requires employers with four or more employees
(at least one of whom works in New York City) to disclose the
minimum and maximum annual salary or hourly wage the employer
believes, in good faith, it is willing to pay for the advertised
job, promotion or transfer opportunity. Covered employers must
follow the law when advertising for all positions, except for
positions that cannot or will not be performed, at least in part,
in New York City (whether from an office, in the field or remotely
from the employee’s home). The good faith salary range
disclosure does not need to include other forms of compensation
such as bonuses, tips, health benefits and paid time off. The New
York City law provides only current employees (but not job
applicants) with a private right of action to bring a lawsuit
against an employer for violating the law.

New York state’s pay transparency law, effective
September 17, 2023, is generally similar to New
York City’s pay transparency law?with a few key differences.
Like the New York City law, the purpose of the state law is to
address systemic pay inequity and discrimination by requiring
employers to disclose good faith annual salary, hourly wage
compensation or compensation ranges. However, unlike the New York
City law, the state law is more expansive and provides forms of
relief for employer violations to both job applicants and to
current employees by allowing an individual in either group to file
a complaint with the New York State Department of Labor. The state
law amends the New York State Human Rights Law and requires
employers with four or more employees to post good faith
compensation information to any jobs that can or will be performed,
at least in part, in the state of New York. Another prior Alert breaks down the law’s
potentially wide-ranging reach to employers with no physical
presence in New York, but who advertise jobs that may be performed
entirely remotely and can be performed, at least in part,
in New York state. Unlike the New York City law, the state law also
requires employers to include a job description with each job
posting (should such a description already exist) and, when a
position is paid “solely on commission,” the posting must
include a general statement that compensation will be based on
commission. Employers must also keep a record of the history of
compensation ranges for each job, promotion or transfer
opportunity. An employer’s failure to comply with the statute
will result in civil penalties of up to $3,000 for a third (or
subsequent) violation, based on the employer’s size, good
faith, gravity of the violation(s) and history of previous
violation(s). There is no private right of action to sue an
employer under the law, and the law notes that it does not
supersede or preempt any pay transparency provisions of local laws,
rules or regulations.

While other New York localities have also enacted pay
transparency bills in the recent past, such as Ithaca (effective
September 1, 2022), Westchester County (effective November 6, 2022)
and Albany County (passed by legislature on October 11, 2022), pay
transparency for the vast majority of employers throughout New York
state will now be a reality in the very near future.

Enhanced Whistleblower Protections

Effective January 26, 2022, Governor Kathy Hochul significantly
expanded the New York Labor Law’s whistleblower protections
under NYLL § 740 to employees, former employees
and independent contractors throughout New York state. One of the
key changes is that the law now protects those blowing the whistle
on an employer’s violation of any law, rule or regulation,
rather than just those that present a substantial and specific
danger to public health or safety. Also, prior to the amendment, an
employee was required to provide proof of an actual violation of a
law, rule or regulation to receive whistleblower protection. Now,
an employee needs to prove only that they “reasonably
believe” the employer’s activity, policy or practice is in
violation of a law, rule or regulation, or poses a substantial and
specific danger to public health or safety.

The amendment also expanded the definition of “retaliatory
action” to include (i) an adverse employment action or threats
to take such action against an employee in the terms and conditions
of employment; (ii) actions or threats to adversely impact a former
employee’s current or future employment; or (iii) threatening
to contact or contacting the United States immigration authorities
to report the citizenship or immigration status of an employee or
of an employee’s family or household member.

Employees also no longer are required to bring the violating
activity to the attention of a supervisor or give the employer a
reasonable opportunity to correct the alleged violation; under the
amendment, employees are required only to make a “good faith
effort” to notify the employer of the activity, policy or
practice. There are also a number of circumstances under which
employer notification will not be required, as detailed in our
prior Alert.

Employers are required to post a notice of employee protections
and rights under the law in a conspicuous and easily accessible
location frequented by employees and applicants for employment.

Employers should consider having a complaint procedure by which
employees can raise concerns about legal, ethical or safety
violations. This will help bring potential legal violations to an
employer’s attention. The failure of an employee to use the
complaint procedure may be a defense in some circumstances where a
user-friendly policy and complaint procedure exists.

Retaliation via Publication of Employee Personnel Files Is
Unlawful Under the New York State Human Rights Law

Effective March 16, 2022, Senate Bill S5870 amended the New York State
Human Rights Law (NYSHRL) to prohibit employers from releasing
employee personnel records as a retaliatory action against an
employee because the employee has either (1) opposed any practices
forbidden under the NYSHRL or (2) filed a complaint, testified, or
assisted in any proceeding under the NYSHRL or any other judicial
or administrative proceeding. The law’s justification
references “recent events” in which employers leaked
employee personnel files with the intent to disparage or discredit
a victim or witness of discrimination in the workplace. The law
does explicitly allow employers to release employee personnel files
where such disclosure is made in the course or commencing or
responding to a complaint, civil or criminal action, or judicial or
administrative proceeding.

The new law is consistent with the broad prohibition against
retaliatory conduct under federal and state law. Supervisors should
be trained on the broad scope of the prohibition, including its
application to former employees.

New York State Division of Human Rights’ Anti-Sexual
Harassment Hotline Is Live

Since July 19, 2022, the division has operated a statewide,
confidential, toll-free hotline for New York employees to voice
complaints of workplace sexual harassment. The hotline phone number
(1-800-427-2773) provides callers with information about how to
file sexual harassment complaints with the division and, if
interested, will provide them with the contact information of a pro
bono attorney for further assistance.

The new law requires employers to update their policies or other
communications with employees to include the hotline number. There
are posting requirements, too.

Required Notice of Electronic Monitoring

Effective May 7, 2022, New York’s digital workplace monitoring
law amends the state civil rights law to require prior written
notice upon hiring to all employees, informing them of the types of
electronic monitoring that the employer may use. The law covers
employer monitoring of “any electronic device or system,”
which includes computer, telephone, internet and email systems.
Employers must specifically advise employees that:

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,
photo-electronic, or photo-optical systems may be subject to
monitoring at any and all times and by any and all lawful
means.

The law covers all employers (regardless of size) with a
“place of business within New York State,” but does not
address coverage of wholly remote employers operating within the
state or whether remote workers living outside the state are
covered.

Employers must obtain each employee’s acknowledgment of the
notice and also post a similar notice in a conspicuous location.
Employers who are found to violate the law are subject to civil
penalties, with a first offense resulting in up to a $500 penalty;
second offense up to $1,000; and third and each subsequent offense
up to $3,000.

While employers should already be complying with this law, if
they are not, they must immediately update their onboarding
policies and procedures to ensure all new hires receive the
required notice and sign an acknowledgement of the same, post the
notice conspicuously in the workplace, and review and update their
employee handbooks to ensure existing monitoring policies reflect
the law’s notice requirements. While the law explicitly applies
to newly hired employees, it also requires employers to provide the
notice annually to its existing employees. Prudent New York
employers should also consider furnishing the notice to remote
employees, as well as independent contractors and interns.

Prohibition of No-Fault Attendance Policies

Effective February 19, 2023, Senate Bill S1958A amends the NYLL to prohibit absence
control policies (aka “no-fault” attendance policies,
which treat all absences the same) that discipline employees for
taking absences that are protected under federal, state or local
laws. Under the law, employers may not assess any demerit,
occurrence, any other point or deductions from an allotted time
bank that subjects or could subject an employee to disciplinary
actions based on lawful absences. Such disciplinary actions
include, but are not limited to, failure to receive a promotion or
loss of pay. Employers will soon be subject to retaliation claims
should they engage in such a practice. The state seeks to make it
explicitly clear that workers shall not be punished or subject to
discipline for lawful absences.

Even without the new law, no-fault attendance policies are high
risk. For example, an employer may put itself at risk of a claim
when it considers absences under the Family and Medical Leave Act
and Americans with Disabilities Act for certain purposes. Indeed,
the Equal Employment Opportunity Commission has identified no-fault
attendance policies as one of the employment practices that may
result in systemic discrimination when such a policy fails to
provide reasonable accommodations for people with disabilities,
such as making an exception to an attendance plan when an absence
is caused by a person’s disability. Although beyond the scope
of this Alert, it is important to note there are a number
of steps employers can take to mitigate (not eliminate) the risks
of no-fault policies.

New York City’s Automated Employment Decision Tools
Law

New York City Local Law 144 of 2021 was
enacted on December 11, 2021, and requires that New York City
employers take a number of affirmative steps before using
artificial intelligence in their employment decision-making
processes (including hiring and promotion decisions). Although
effective January 1, 2023, in light of the high volume of public
comments and requests for additional guidance, the law will not be
enforced until April 15, 2023. While the New York City Department
of Consumer and Worker Protection released proposed rules for implementing the law in
December 2022, the final rules are yet to be published and a second
public hearing is planned for January 23, 2023. Once enforcement
takes effect, employers in New York City will be required to
conduct an independent bias audit of any automated employment
decision tool (AEDT) before the AEDT is used. The bill also
requires that candidates or employees that reside in New York City
are notified about (i) the use of such tools in the assessment or
evaluation for hire or promotion and (ii) the job qualifications
and characteristics that will be used by the AEDTs. Violations
(including each AEDT use violation and each AEDT notice violation)
will be subject to a civil penalty of up to $500 for a first
violation and each additional violation occurring on the same day
as the first violation, and not less than $500 nor more than $1,500
for each subsequent violation. We will offer an in-depth summary of
what will soon be a critical legal requirement for all New York
City employers in a forthcoming Alert.

Additional Legal Updates for New York Employers

Electronic Documents

Effective December 16, 2022, Section 201 of the NYLL now requires employers
to provide electronic versions of all documents that are required
to be physically posted at a worksite pursuant to state or federal
law or regulation. Digital versions must be made available through
the employer’s website or by email, and employers must provide
employees with notice that documents required for physical posting
are also available electronically.

Citizenship and Immigration Status
Discrimination

Effective December 23, 2022, employers are prohibited from
discriminating on the basis of “citizenship or immigration
status” under the NYSHRL. The law defines “citizenship or
immigration status” as “citizenship of any person or the
immigration status of any person who is not a citizen of the United
States.” The law states that it does not preclude verification
of citizenship or immigration status where required by law, nor is
an adverse action based on verification of citizenship or
immigration status prohibited where such action is required by
law.

COVID-19

New York state extended required COVID-19 paid vaccination leave
through December 31, 2023. Employers must continue to provide
employees with “a sufficient period of time, not to exceed
four hours” of paid leave per dose (including boosters) of
COVID-19 vaccines. The leave must be paid at the employee’s
regular rate of pay and employers may not charge such time against
leave accruals otherwise already available to the employee.

New York City ended its private employer vaccine mandate on
November 1, 2022. Private employers may, but are no longer required
to, continue to require vaccination for COVID-19 as a condition of
employment pursuant to their own policies.

New York City’s child vaccine law expired on December 31,
2022. Under the law, employees who are parents of a child under the
age of 18 or an older child incapable of self-care because of a
disability were entitled to up to four hours of paid COVID-19 child
vaccination time per child and per vaccine injection. The leave was
to be paid at the employee’s regular rate of pay and employers
could not charge such time against leave accruals otherwise already
available to the employee.

Paid Family Leave Expansion

In 2023, the list of family members for whom eligible workers
can take paid family leave to care for will expand to
include siblings with a serious health condition.
“Siblings” includes biological siblings, adopted
siblings, stepsiblings and half-siblings. Employees will contribute
0.455 percent of their gross wages per pay period, with a maximum
annual contribution for 2023 of $399.43. Employees taking paid
family leave in 2023 will be eligible to receive a maximum weekly
benefit of $1,131.08.

Minimum Wage and Salary Exemption Threshold
Increases

In 2023, the minimum wage for every part of New York state
except New York City, Long Island and Westchester County will
increase from $13.20 an hour to $14.20 an hour. The 2023 minimum
wage throughout New York City, Long Island and Westchester County
will remain unchanged from 2022 at $15.00 an hour.

In 2023, the minimum salary threshold for the executive and
administrative exemption for every part of New York state except
New York City, Long Island and Westchester County will increase
from $990 a week to $1,064.25 a week. The minimum salary threshold
for the executive and administrative exemption in New York City,
Long Island and Westchester County will remain unchanged from 2022
at $1,125 a week.

What This Means for Employers

The beginning of the new year is a good time to review your
policies and practices to make sure they are up-to-date with the
laws referenced in this Alert. Expect to hear from us
again soon, as we are tracking other bills that are expected to
become law in the near term, including bills dealing with no
rehire, confidentiality and nondisparagement. Happy New Year!

For More Information

If you have any questions about this Alert or have
specific questions and concerns related to your operations, please
contact Eve I. Klein, Jonathan A. Segal, Gregory Slotnick, any of the attorneys in our Employment, Labor, Benefits and Immigration
Practice Group or the attorney in the firm with whom you are
regularly in contact.

Disclaimer: This Alert has been
prepared and published for informational purposes only and is not
offered, nor should be construed, as legal advice. For more
information, please see the firm’s
full disclaimer.