New York State and Local Pro-Employee Trend Continues in 2017
ALM Media
Updated
In 2017 New York continued its trend of enacting laws and regulations at both the state and local levels that cause epic headaches for employers. These new developments make clear that New York is unlikely to give up its title as one of the most pro-employee states in the nation. Here is a look back at some of the most significant developments.
New York State Paid Family Leave
In April 2016, New York enacted amendments to the disability benefits law that provide paid, job-protected leave to employees working in New York in order to bond with a child in the first 12 months after birth, foster care placement, or adoption placement; to provide care for a family member with a serious health condition; or because of a qualifying military exigency as interpreted under the Family and Medical Leave Act. N.Y. Workers’ Comp. Law §201(15). During 2017 the state’s Workers’ Compensation Board (WCB) and Department of Financial Services finalized regulations corresponding to the law. As of Jan. 1, 2018, employers will be required to provide eligible full-time and part-time employees with paid benefits for eight weeks at a rate of the lesser of 50 percent of the employee’s average weekly wage or 50 percent of the state average weekly wage (currently $1305.92). Id. at §204. These benefits will increase yearly, and by 2021 will provide for 12 weeks of leave at the lesser of 67 percent of the employee’s average weekly wage or 67 percent of the state average weekly wage. Employers are required to obtain insurance for the benefits or self-insure, and may take payroll deductions to cover costs that do not exceed the limit set by the state. Workers’ Comp. Law §§209, 211; N.Y. Comp. Codes R. & Regs. tit.12, §380-2.4. Employers must also maintain health insurance for employees on leave and reinstate employees to their previous or a comparable position following the leave. N.Y. Comp. Codes R. & Regs. tit.12, §§380-7.3; 380-8.1. Employers must further provide guidance to employees concerning the leave in an employee handbook, or in written guidance if the employer does not maintain a handbook. Id. at §380-7.2. Finally, employers must post notice of the leave visible to all employees and applicants. Id.
Increases to Minimum Wage, Overtime Wage Threshold
New York has continued to pursue a path to raising employee minimum wages to $15.00 per hour. In 2016, the state announced increases to the state’s minimum wage to take effect as of Dec. 31, 2016, and increase annually for the next few years. The increases vary by location and employer size. As of Dec. 31, 2017, the minimum wage in New York City is $12.00 per hour for employers with 10 employees or less and $13.00 for employers with 11 employees or more. N.Y. Lab. Law §652. The minimum wage will also rise to $11.00 for employers in Nassau, Suffolk, and Westchester counties, and $10.40 for employers in the rest of the state. Id. In December 2016, the state also raised the minimum salary threshold applicable to employees exempt from the minimum wage law. As of Dec. 31, 2017, the minimum salary threshold in New York City is $900.00 per week for small employers with 10 employees or less and $975.00 per week for large employers with 11 employees or more. N.Y. Comp. Codes R. & Regs. tit.12, §§141-3.2; 142-2.14. The threshold will also rise to $825.00 per week for employers in Nassau, Suffolk, and Westchester counties, and $780.00 per week for employers in the rest of the state. Id.
Proposed Scheduling Time Regulations
On Nov. 22, 2017, the state Department of Labor published a proposed rule to address “just in time” or “on call” scheduling. It enumerates when an employee must be paid for call-in pay, and how call-in pay should be calculated. The rule would not apply to employees in farm, building services, or hospitality industries, and will be open for public comment for 45 days.
Local Salary History Bans
At the local level, New York City and Albany County passed laws limiting employer ability to inquire about an applicant’s salary history. The city law, effective Oct. 31, 2017, amends the New York City Human Rights Law (the NYCHRL). It provides that employers, their agents, and employment agencies cannot inquire about the salary history of a job applicant or rely on that history in determining the salary, benefits or other compensation during the hiring process. N.Y.C. Admin Code §8-107(25)(b). The law has several exceptions, including where the applicant voluntarily and without prompting discloses the information; where employees apply for internal promotion or transfer; where an employer is required by law to receive and verify salary history; where public employee positions are determined by collective bargaining; and where the employer learns the information as part of a background check to verify non-salary related information, provided that in this case an employer cannot rely on the information in making salary decisions. Id. at §8-107(25)(e). Additional guidance published by the city clarifies that the law will apply where an employee interviews for a position in the city, and, based on prior jurisprudence interpreting the NYCHRL, also where the impact of the unlawful discriminatory practice is felt within the city. The city has noted that the law may also apply in merger and acquisition situations, where employees are being asked to interview for positions within the acquiring company and that in those circumstances, salary history information provided as part of due diligence should not be shared with hiring managers. Albany County’s law prohibits employers and employment agencies from screening job applicants based on their wage histories, including by requiring that an applicant’s wages satisfy a certain minimum or maximum. Local Law No. 10 for 2017. It also prohibits requiring an applicant to disclose salary history as a prerequisite to an interview or job offer, or seeking salary history from an applicant’s current employer without the employee’s written authorization and after an offer of employment has been made. Id. The law takes effect Dec. 17, 2017.
New York City Freelance Employee Protection
This year, the city also enacted a law protecting freelance workers, which took effect on May 15, 2017. The “Freelance Isn’t Free Act” requires freelance workers and the businesses engaging them to sign a written contract if either a single engagement or an aggregate of engagements between the parties within the past 120 days has a value of $800 or more. N.Y.C. Admin Code §20-928. The contract must contain the name and mailing address of both parties, a list and value of the services the freelance worker will provide pursuant to the contract, the rate and method of compensation, and the date by which the freelance worker must be paid or the mechanism for determining that date. Id. Contract provisions that attempt to waive the freelance worker’s rights are void. Id. at §20-935. Sales representatives as defined by the labor law, lawyers, and licensed medical professionals are excluded from the definition of freelance worker under the law. Id. at §20-297. The law also creates liability for businesses engaging a freelance worker where payment is not received by the date compensation is due under the terms of the contract, or within 30 days from the worker’s completion of services where the terms are silent; and where a hiring party requires a worker to accept less than the amount of the contracted compensation as a condition of being paid on time. Id. at §20-929. Finally, the law authorizes penalties ranging from $250 in some cases to double damages in others, plus attorney fees, and allows the city to bring an action against hiring parties who are repeat offenders. Id. at §20-933; 20-934. It also authorizes civil penalties up to $25,000 where a party engaged in a pattern of violations. Id. at §20-934.
Earned Sick and Safe Time Act
In November 2017, Mayor de Blasio signed the “Earned Sick and Safe Time” Act. Int. 1313-2016. The act expands the city’s Earned Sick Time Act to allow employees to use paid time for absence from work due to certain circumstances where the employee or employee’s family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking, including to obtain services from shelter or crisis programs; taking safety precautions; meeting with an attorney or social worker to consult with, prepare for, or participate in court proceedings; filing a complaint or domestic incident report with law enforcement; meeting with a district attorney’s office; or enrolling children in a new school. Id. The act will take effect in May 2018.
Conclusion
In light of this year’s developments and the current political climate, employers should not expect the state to stop enacting pro-employee laws any time soon, and would be well-advised to buckle up for 2018 by being ready to amend policies and practices. Michael Schmidt is vice chair, and Jennifer Queliz is an associate, of the labor and employment department of Cozen O’Connor in New York.
