The four new laws are consistent with the rapid expansion of employee protections in New York.
New York Governor Kathy Hochul has recently signed into law multiple pieces of legislation that have significant implications for New York employers. The new laws: (i) create statewide salary transparency requirements (similar to the New York City version of this law but with additional obligations); (ii) require employers to establish lactation accommodation policies and provide eligible nursing employees with reasonable accommodations (similar to the New York City version of this law); (iii) create new requirements for employers to make required workplace postings available electronically; and (iv) prohibit employers from establishing “no fault” attendance policies that penalize employees who take leaves and absences otherwise protected by law. On the other hand, Governor Hochul vetoed a bill that would have set forth requirements similar to those required in New York City for the engagement of freelance independent contractors.
The most recent legislation, signed by Governor Hochul on December 21, 2022, creates a statewide salary transparency requirement. The law adds a new provision of the New York Labor Law (Section 194-b) requiring all employers of four or more employees (including their agents as well as employment agencies) advertising a job, promotion, or transfer opportunity to disclose the “compensation or a range of compensation for such job, promotion, or transfer opportunity.” The law defines “range of compensation” 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.” The law applies to jobs that can or will be performed, at least in part, in the state of New York.
The law does not create a new private right of action, and instead provides that “any person claiming to be aggrieved by a violation” may file a complaint with the New York State Department of Labor (DOL). The DOL may issue civil penalties of up to $1,000 for a first violation, $2,000 for a second violation, and $3,000 for a third or subsequent violation.
In many respects, the law is similar to the New York City salary transparency law currently in effect (more information about that law can be found in our prior alerts here and here) and it effectively expands those requirements statewide. The law does, however, include two additional key requirements for employers.
First, the law requires employers to keep and maintain new records demonstrating “the history of compensation range for each job, promotion, or transfer opportunity and the job descriptions for such positions, if such descriptions exist.” At a minimum, this will require employers to maintain records of the posted salary ranges and job descriptions for roles for six years, beginning on the effective date of the law.
Second, the law requires employers to include a “job description for [a] job, promotion, or transfer opportunity, if such description exists” in any advertisement for a job, promotion, or transfer opportunity” in New York state. In other words, to the extent an employer posts or advertises for a job posting, the employer will need to include any “job description” it maintains for the job in addition to the salary range. The law does not define “job description,” but employers will have to ensure that covered postings include any internal job descriptions relating to the job being posted.
This law takes effect on September 17, 2023, and the DOL is required to promulgate rules and regulations to effectuate the new law.
On December 9, Governor Hochul signed legislation amending New York Labor Law Section 206-c to require employers to provide nursing employees a designated area to express breast milk. Specifically, the new law requires that upon request by an employee, an employer must designate a lactation room or area that is:
The designated lactation space must also include a chair, a working surface, nearby access to clean running water and, if the workplace is supplied with electricity, an electrical outlet. The designated lactation space cannot be a restroom. Finally, if the workplace has access to refrigeration, employees must be able to use such refrigeration for storing breast milk.
The law permits exception from these requirements where an employer can demonstrate undue hardship based on the size, financial resources, and nature of the employer’s business. In such instance, an employer may make “reasonable efforts” to provide a room or location, other than a restroom, close to the work area where an employee can express breast milk in privacy.
In many respects, the law mirrors the lactation accommodation requirements in effect in New York City since 2018 (read our alert on that law). However, the final version of the new statewide law requires employers to adopt a specific policy developed by the DOL as opposed to an employer’s own policy consistent with the law’s requirements, as is the case in New York City.
Specifically, employers must provide this DOL-drafted policy not only to all employees upon hire and when the employee returns to work following the birth of a child, but also annually to all current employees. The policy (which is forthcoming) will specify how employees can request a lactation room and require employers to respond to such a request within five business days.
This law takes effect on June 7, 2023.
Governor Hochul signed legislation on December 16 amending New York Labor Law Section 201 to require employers to make available electronically any documents that are required to be posted physically in the workplace under the New York Labor Law. Effectively, employers must create and make available electronic versions of all workplace postings currently required under state or federal law. These postings include a Section 740 whistleblower retaliation notice, an Article 23-A criminal conviction notice, and a minimum wage notice.
The digital copies can be made available through an employer’s website or disseminated to employees via email. Employers must also notify employees that documents required to be posted physically are available electronically.
This law took effect immediately upon signing on December 16, 2022.
On November 21, the governor signed legislation making it unlawful retaliation for an employer to discipline workers who use legally protected leave. The law amends New York Labor Law Section 215, an anti-retaliation law protecting individuals who make complaints or exercise protected rights under the New York Labor Law.
The new law provides that an employer may not discriminate or retaliate against any employee due to the employee’s use of “any legally protected absence pursuant to federal, local, or state law.” The law specifically states that it is retaliatory to assess “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.”
Under the law, if the DOL finds an employer violated this provision, it can assess: (a) a civil penalty of $1,000 to $10,000 for the first offense and up to $20,000 for a second offense; (b) payment of lost compensation to an employee; (c) damages; and (d) other relief it deems appropriate. An individual can also bring a private civil action for two years from the date of the alleged retaliatory act.
Notably, applicable federal, state, and city statutes providing for protected absences as a leave or accommodation (for example, the Americans with Disabilities Act, Family and Medical Leave Act, New York State Paid Family Leave Law, New York City and New York state human rights laws, and New York paid sick leave laws) already prohibit retaliation for taking or requesting a leave of absence. While the law does not extend anti-retaliation protections where an absence is not already legally protected (vacation or a personal unpaid leave of absence, for instance), it does create another avenue for employees to pursue claims and brings enforcement of these protections within the purview of the DOL.
The law takes effect on February 20, 2023.
On December 23, 2022, Governor Hochul vetoed legislation that would have set forth wage and job protections for freelance workers in the state. The bill defined “freelance worker” as any person or an organization composed of only one person (in other words, an individual contractor’s corporation) hired as an independent contractor for at least $800. The bill, which excluded construction contractors, would have required companies who enter into covered agreements with freelance workers to reduce the terms of the agreement to writing, provide a written copy of the contract to the freelance worker, and include the following minimum information in the contract:
The hiring party would have been required to keep contracts for at least six years. The bill provided that the failure to produce a freelancer contract upon request by the DOL shall give rise to a presumption that the terms that the freelance worker has presented are the agreed upon terms.
In Governor Hochul’s veto message, she explained that “this legislation would make [the] DOL responsible for a form of regulation of private contracts between companies and non-employees. Such an entirely new program is well outside the scope of [the] DOL’s statutory charge to enforce labor protections for employees.” Because the previous legislative session ended, the legislature cannot override Governor Hochul’s veto but may reintroduce the bill in the new session starting in January 2023.
These new laws are significant for New York employers and are consistent with the rapid expansion of employee protections in New York. New York employers should consider taking various steps to prepare for these laws going into effect, including:
Law clerk Alanna Fichtel contributed to this LawFlash.
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