The following was written collectively by our Labor & Employment Department.
New York: New Laws
1. NY State Paid Family Leave Law Goes into Effect
In 2016, New York State adopted a 12-week paid family leave policy for New York employees (the “Paid Leave Law”). Once fully implemented, the Paid Leave Law will provide New York employees with up to 12 weeks of job-protected paid family leave for the purpose of (1) caring for a new child, (2) caring for a family member with a serious health condition, or (3) relieving family pressures when a family member, including a spouse, domestic partner, child or parent, is called to active military service. Starting on January 1, 2018, employees will be eligible for eight weeks of paid leave, earning 50% of their weekly pay (capped at 50% of the statewide average weekly pay). The number of weeks of leave and amount of pay increases yearly until, by 2021, employees will be eligible for the full 12 weeks of paid leave, earning 67% of their weekly pay (capped at 67% of the statewide average weekly pay).
Paid leave to care for a new child will be available to both men and women and will include leave to care for an adoptive or foster child. An employee may take paid leave to care for a new child any time within the first 12 months after the child’s birth or 12 months after the placement for adoption or foster care of a child with the employee. Paid leave to care for a family member with a serious health condition includes leave to care for a child, parent, grandchild, grandparent, spouse or domestic partner.
Employees with a regular work schedule of 20 or more hours per week are eligible for Paid Leave after 26 weeks of employment and employees with a regular work schedule of less than 20 hours per week are eligible after 175 days worked.
Paid Leave will be fully funded by employee contributions, which are set at 0.126% of employees’ weekly wages (or the state average wage, if less) and will be deducted from their paychecks. For 2018, the maximum employee contribution is roughly $1.65 per week (or $85 per year).
If time taken off qualifies for leave under both FMLA and Paid Family Leave, then the leaves run concurrently under both laws, provided that the employer has informed the employee that s/he is eligible for leave under both laws.
2. NYC Salary History Ban
Effective October 31, 2017, New York City enacted § 8-107(25) of the New York City Human Rights Law, which makes it an “unlawful discriminatory practice” to inquire about, seek or consider an applicant’s salary history in determining whether to make an offer of employment or the financial terms of an offer. Salary history is broadly defined and includes current and prior wages, benefits, and “other compensation.” This law applies to all employment in NYC and, according to FAQs published by the NYC Human Right Commission (HRC), the law also “may apply” to a salary inquiry made in the City for work outside of the City.
The law permits an employer to rely upon and verify salary information that is voluntarily disclosed without prompting. It also does not prohibit an employer from asking an applicant about his or her salary expectations, nor does it prohibit an employer from asking about
- any competing offers the applicant may have received;
- unvested equity, deferred compensation or bonus that an applicant would forfeit if s/he resigns from current employment; or
- “objective measures” of an applicant’s prior job performance, such as revenue or sales generated.
The law also does not apply to current employees seeking internal transfer or promotion with their current employer. Moreover, in the context of a potential acquisition, for purposes of due diligence, employees of the target company are not considered “applicants.” However, according to the HRC, if individual employees of the acquired company are asked to interview for a position with the acquiring company, the salary history inquiry ban “may be implicated.”
In addition to employers, those who disclose salary history in violation of the law, including applicant’s representatives (such as headhunters and agents), may be held liable for “aiding and abetting” a violation. In this regard, the HRC advises that a prospective employer should obtain a copy of an applicant’s written consent before relying on a representative’s disclosure about the applicant’s salary history. Employers who violate the new law can face civil penalties of up to $250,500, back pay, compensatory damages, and attorneys’ fees.
3. NYC Updates “Ban the Box” Law to Detail Per Se Violations and Procedures Employers Must Follow to Conduct Employment-Related Criminal Background Checks
On August 5, 2017, the New York City Commission on Human Rights’ comprehensive interpretive “Enforcement Guidance” regarding New York City’s Fair Chance Act (“FCA”) went into effect. These regulations expanded and clarified the requirements under the FCA, which regulates criminal background checks on employees and license holders. This law is the City’s version of a growing trend of so-called municipal “Ban the Box” laws designed to prohibit employers and agencies from denying jobs and licenses to would-be employees because of a criminal conviction(s), especially when the conviction is not directly related to the persons’ ability to perform the job. The Fair Chance Act itself took effect on October 27, 2015. Since then, the New York Commission on Human Rights, the agency charged with enforcing the FCA, has published revisions that further clarify the law, provide guidelines for per se violations, and detail the analysis and process for legally withdrawing conditional offers of employment based on the results of a criminal background check.
Under these clarifying regulations , an employer may not inquire about an applicant’s criminal history or even request authorization or run a criminal background check until after making a conditional offer of employment. There are several categories of per se violations of the Act: 1) Recruiting materials that express limitations or specifications regarding criminal history; 2) applications that require applicants to submit to a background check or to provide their criminal history prior to a conditional offer; 3) any statements or inquiries into pending arrests or criminal convictions prior to making a conditional offer; 4) the use of boilerplate applications that refer to criminal history; 5) disqualifying an applicant for refusing to respond to any prohibited inquiry or statement about criminal history; 6) asserting, either orally or in writing, that individuals with a criminal history, or with certain convictions, will not be considered or hired; 7) seeking to discover, obtain, or consider the criminal history of an applicant before a conditional offer of employment is made; 8) failing to comply with review and notice process in the event of withdrawal of a conditional offer (employer to provide applicant a written copy of any inquiry the employer conducted into the applicant’s criminal history, share employer’s A-23 analysis); and 9) seeking information about arrests that did not result in criminal conviction.
Accordingly, it is imperative that employers immediately review their job applications and advertisements, as well as their hiring practices to ensure they are not committing a per se violation.
Once a conditional offer of employment is made, it may only be revoked on the basis of a felony, misdemeanor or unsealed violation conviction. However, the employer must conduct an analysis and engage in the Fair Chance Process before revoking a conditional offer of employment. The specific requirements of the analysis and Fair Chance Process are set forth here.
4. Minimum Wage and Minimum Salary Increases
As of December 31, 2017, the New York City minimum wage increased to $12 per hour for employers with 10 or fewer employees and to $13 per hour for employers with 11 or more employees. The minimum wage increased to $11 per hour for employers in Westchester, Nassau and Suffolk Counties and to $10.40 per hour in the rest of the state.
In addition, the minimum salary for exemption as an “administrative” or “executive” employee increased from $787.50 per week ($40,950 annually) to $900 per week ($46,800) for New York City employers with 10 or fewer employees and from $825 per week ($42,900 annually) to $975 per week ($50,700 annually) for New York City employers with 11 or more employees. The minimum salary for exemption as an “administrative” or “executive” employee increased from $750 per week ($39,000 annually) to $825 per week ($42,900 annually) for employers in Nassau, Suffolk, and Westchester counties and from $727.50 per week ($37,830 annually) to $780 per week ($40,560 annually) for other counties in New York State.
5. Expanded Coverage Under NYC Earned Sick Time Act
New York City has amended its Earned Sick Time Act, expanding the covered reasons for leave under the law, as well as broadening the definition of a covered family member for whom an employee may take leave to provide care. The amendment renames the law the “NYC Earned Sick and Safe Time Act” and extends leave protections under the law to include situations where an employee or an employee’s covered family member is a victim of domestic violence, sexual offenses, stalking or human trafficking (“safe time”). Employers may obtain “reasonable documentation” of the need for safe time following an absence of more than three consecutive work days; however, employers are not permitted to require disclosure of specific details relating to the domestic violence, sexual offenses, stalking or human trafficking.
The amendment also expands the list of covered family members for whom an employee may use sick and/or safe time to provide care to include the following broad categories: any other individual related by blood to the employee; and any other individual whose close association with the employee is the equivalent of a family relationship. These new categories are in addition to the current list of covered family members, which includes an employee’s spouse, domestic partner, parent, child, sibling, grandparent, grandchild or the child or parent of the employee’s spouse or domestic partner.
The amendments take effect on May 5, 2018.
6. NYC’s Fair Workweek Law Impacts Fast Food and Retail Industries
On November 26, 2017, New York City’s Fair Workweek Law went into effect. This legislation heavily regulates the scheduling practices and flexibility of retail and fast food employers.
Fast Food employees have the right to:
- Good Faith Estimate of Schedule:
On or before workers’ first day of work, employers must provide written schedules for the first two weeks of work with hours, dates, start and end times of shifts and written “Good Faith Estimates”. Employers must provide an updated estimate if the estimate changes.
- Advanced Notice of Work Schedules:
Employers must give workers their written work schedule at least 14 days before their first shift in the schedule.
- Priority to Work Newly Available Shifts:
Before hiring a new employee when new shifts become available, employers must advertise shifts to existing workers in NYC first by: 1) posting information at the worksite where the shifts have become available and by directly providing the information to workers electronically, which may include via text or email; 2) giving priority to work open shifts to workers at the worksite where shifts are available; 3) giving shifts to interested workers from other worksites only when no or not enough workers from the worksite accept. Employers can only hire new workers if no current NYC workers accept the shifts by the posted deadline.
- Consent Plus $100 for “Clopening” Shifts:
Employers cannot schedule workers to work two shifts over two days when the first shift ends a day and when there are less than 11 hours between shifts (a “clopening”) UNLESS workers consent in writing AND are paid a $100 premium to work the shift.
Retail employees have the right to:
- 72 Hours’ Advance Notice of Work Schedule:
Employers must give workers their written work schedule at least 72 hours before the start of the schedule in the way the employer usually contacts workers, which may include via text and email. They must post the schedule at the workplace where all workers can see it. This schedule must include dates, shift start and end times, and location(s) of all shifts in the work schedule. If the schedule is changed, employers must update and repost the schedule and contact all affected workers.
- No On-call Shifts:
Employers cannot require workers to be ready and available to work at any time the employer demands, regardless of whether workers actually work or report to work; or to “check in” within 72 hours of a scheduled shift to find out if they should report for the shift.
- No Shift Additions with Less than 72 Hours’ Notice:
If employers want to add time or shifts to employee schedules less than 72 hours before the change, workers have the right to accept or decline the change. If workers accept an additional shift, they must do so in writing.
- No Shift Cancellations with Less than 72 Hours’ Notice:
Employers cannot cancel a shift less than 72 hours before the start of the shift except under the following circumstances: threats to worker safety or employer property, public utility failure, shutdown of public transportation, fire, flood, or other natural disaster, or a government-declared state of emergency. However, workers may trade shifts voluntarily.