New York and New Jersey employers have an increasing number of required notices to distribute to their employees. With upcoming due dates for distribution notices under the New York City Pregnancy Accommodation and Earned Sick Time Laws, we review below the notice requirements in New York and New Jersey, as well as the leave requirements of the new New York City Earned Sick Time Law. Note that these requirements are in addition to federal, state and city posting requirements.
New York City Pregnancy Accommodation Law
By May 30, 2014, employers with four or more employees must provide a Pregnancy Accommodation Law Notice to all current employees. Effective January 30, 2014, newly-hired employees must be given a copy of the Notice upon hiring. Copies of the Notice can be printed at http://www.nyc.gov/html/cchr/html/publications/pregnancy-employment-poster.shtml.
The Pregnancy Accommodation Law is a new amendment to the New York City Human Rights Law. This new protection covers all employees who are pregnant, have recently given birth, or have a medical condition related to pregnancy or childbirth. Any reasonable accommodation that assists the employee with an “essential” job function must be granted.
Examples of reasonable accommodations are listed on the Notice, and include such changes as giving assistance with manual labor and allowing increased bathroom breaks. The examples are not a complete list of reasonable accommodations. Only those accommodations that will cause an “undue hardship” to the employer may be denied — and it will be the employer’s burden to prove that undue hardship.
Amended New York City Earned Sick Time Law
Commencing on May 1, 2014, employers must provide an Earned Sick Time Notice to current employees and to new employees at hiring. A NYC-approved Notice and detailed information about the law can be found at http://www.nyc.gov/html/dca/html/law/PaidSickLeave.shtml. The Notice must be provided in English and in the employee’s native language, if a NYC-approved form is available in that language.
Beginning April 1, 2014, employers must give their employees in New York City who work more than 80 hours in a calendar year a minimum of 40 hours (five days) of sick time each calendar year. Employers who already provide their employees with that amount of sick time (or other time off such as personal time and vacation time) will be in compliance with this law.
Sick time may be used for the employee’s mental or physical illness, injury or health condition and for the employee’s or a family member’s need for a medical diagnosis, care or treatment of a mental or physical illness, injury or health condition, or need for preventative medical care.
Employees will begin accruing their new sick time on April 1, 2014. For employees employed on/before April 1, 2014, their calendar year begins April 1 of each year (and ends on March 31 of the following year). For employees hired after April 1, 2014, their calendar year begins on their date of hire. Employees must earn at least one hour of sick time for each 30 hours worked; however, employers are not required to grant any sick time until the employee has been employed for 120 days (4 months).
Employers with five or more employees must give paid sick time. Employers with four or fewer employees must give unpaid sick time (and may give paid sick time).1
Employees may use the sick days for any mental or physical condition or illness, including preventative care. Employers must allow employees to take their sick days to care for family members, which include spouses, registered domestic partners, children and children of a domestic partner, including biological, adopted, foster, and step children, legal wards and children of an employee standing in loco parentis, parents, parents-in-law, and parents of domestic partners, siblings, including half-siblings, step-siblings, and siblings related through adoption, and grandchildren and grandparents.
Employers may require employees to give reasonable notice for foreseeable sick time uses, and may require employees to take sick time in blocks (but the blocks cannot be longer than four hours). If an employee uses three or more consecutive days of sick time, the employer can require documentation that the sick time was properly used.
At the end of an employee’s calendar year, the employer has the discretion to carry over some or all of the employee’s unused sick time to the next calendar year, but must pay the employee for any accrued sick time that is not carried over. If sick time is carried over, the employer can stop allowing the employee to accrue sick time in excess of 40 hours. Thus, if an employee carries over all 40 hours of sick time into his/her next calendar year, the employer does not have to allow the employee to accrue any sick time until the employee drops below 40 accrued hours. Employers are not required to pay out unused sick time when employees quit or are terminated.
Employers must retain records of sick leave for three years. Retaliation for exercising rights under the law is prohibited. Violations of the law subject the employer to fines of up to $2,500.00 and civil liability for lost wages and benefits and reinstatement.
The following alerts are provided as a reminder about existing regulations and/or notification requirements in New York and New Jersey:
New York State Minimum Wage and Exempt Salary Increases
On December 31, 2013, the minimum wage for all New York State employees became $8.00 per hour.2 Flyers to notify employees of this change can be found at https://labor.ny.gov/workerprotection/laborstandards/workprot/MW%20Updates/LS207_12-31-2013.pdf.
Additionally, overtime pay exemption levels were increased on December 31, 2013. Administrative and Executive exemptions rose to $600.00 per week.3 Allowances for tips, uniforms, meals and lodging also increased.
New York State Wage Theft Protection Act
All employers must give employees Pay Notices that contain certain facts about their wages. Notices must be given to new employees upon hiring, and to current employees between January 1 and February 1 of each year. If you have not yet notified your employees, you should do so as soon as possible.
NYS-approved Pay Notices can be found at http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm. Employers must provide the Notice in English and the employee’s native language, if a NYS-approved form is available in that language. Every employee must sign and date the form, and a copy must be provided to the employee.
Specifically, Pay Notices must contain the following information about the employee’s pay:
1. The rate/rates of pay (how much the employee is paid per unit of work)
2. The basis of pay (the unit of employee work; hourly, weekly, salary, commission, etc…)
3. The employee’s regular pay day (e.g., 1st and 15th of each month)
4. Whether the employer is going to take allowances as part of the minimum wage
5. The employer’s name (including DBAs)
6. The physical address and telephone number of the employer’s main office or principal place of business
In addition to the annual notice requirement, employees must receive a new Pay Notice when any of the information on their Pay Notice changes.
New Jersey Gender Equity Notification
As of January 6, 2014, employers with 50 or more employees (without regard to whether all of those employees are located in New Jersey) must provide Gender Equity Notices to all employees. A copy of the NJ-approved Gender Equity Notice can be found at http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm.
For employees hired on/before January 6, 2014, a copy of the Notice must be provided to the employee by February 5, 2014. For employees hired after January 6, 2014, a copy of the Notice must be provided upon hiring.
Employers must also create and include an acknowledgement with the Gender Equity Notice (a form of acknowledgement is included with the approved Gender Equity Notice form). Every employee must acknowledge that he/she has received and understood the Notice. Employers and employees may use email to satisfy the notice and acknowledgement requirements. Employers must also provide a new copy of the Gender Equity Notice (with acknowledgement) to each employee by December 31 every year.
In addition to giving initial and annual notices to every employee, employers must post the flyer conspicuously in the workplace or on the employer’s website or intranet site (if all employees are notified of the posting and have access to the website, and such site is for the exclusive use of employees).
New Jersey “Whistleblower Act” Notification
All employers must give their employees a copy of the Conscientious Employee Protection Act (“Whistleblower Act”) Notice every year. Whistleblower Act Notices can be distributed physically or electronically, and must be given in English and Spanish. Copies of the NJ-approved Notices can be found at http://lwd.dol.state.nj.us/labor/forms_pdfs/lwdhome/CEPA270.1.pdf.
Employers must complete every posted and distributed Notice by providing contact information for the employer’s Whistleblower Act representative.
New Jersey Recordkeeping Notification
All employers must post the Employer Obligation to Maintain and Report Records (“Recordkeeping”) Notice conspicuously in their workplace or on the employer’s website (if all employees are notified of the posting and have access to the website). New employees must also be given a copy of the notice--either physically or via email--upon hiring. A copy of the Notice can be found at http://lwd.dol.state.nj.us/labor/forms_pdfs/lwdhome/CEPA270.1.pdf.
New Jersey Family Leave Insurance Notification
Employers must post the Family Leave Insurance Notice conspicuously in their workplaces. Employers must also provide copies to new employees upon hiring, and to any employee that notifies the employer that he/she will be taking Family Leave. Copies of the Notice can be found at http://lwd.state.nj.us/labor/fli/empins/emp_requirements.html.
If you have any questions about complying with these various notice requirements, please contact legal counsel.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:Cooper-Jenny
This article was originally published by Bingham McCutchen LLP.