More Pay Transparency Laws

Our last edition focused on the new pay transparency law in New York City.  The New York State Legislature passed Senate Bill 9427A, which would impose salary disclosure requirements similar to those issued in New York City.  The bill would require employers to disclose the compensation or a range of compensation (i.e., the minimum and maximum annual salary or hourly range of compensation) for each job, promotion, or transfer opportunity that can or will be performed, at least in part, in New York State. 

In addition, the New York State law would require the posting to include a job description, if such a description exists.  The bill also includes anti-retaliation language that states that “[n]o employer shall refuse to interview, hire, promote, employ or otherwise retaliate against an applicant or current employee for exercising any rights under this section.” 

If the Governor signs the bill, it would take effect 270 days later.  Non-compliant employers shall, thereafter, be subject to 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. 

Other localities in New York, in addition to New York City, have enacted or introduced pay transparency legislation, including:

  • amended § 215-3 of its city code to require employers with four or more employees based in Ithaca to disclose the “minimum and maximum hourly or salary compensation” in job postings. The ordinance goes into effect September 1, 2022.
  • amending § 700.03 of the county’s Human Rights Law, that requires employers to include a salary range when posting job opportunities and restricts inquiry into prospective employees’ wage history. The requirements apply to employers with four or more employees who post for positions that are “required to be performed, in whole or in part, in Westchester County.” The law goes into effect early November 2022.
  • introduced a law amending the Albany County Omnibus Human Rights Law to require employers to provide the minimum and maximum salary or hourly wage on job postings. The law is pending further review by legislature committees.

S8922A Warehouse Worker Protection Act

The New York Legislature passed Senate Bill S8922A, known as the Warehouse Worker Protection Act, on June 3, 2022. Should the Governor sign the bill, the law would require warehouse distribution centers—which include those that employ 100 or more employees at a single center or 500 or more employees at centers throughout New York State—to provide their employees written descriptions of work-related quotas they are expected to meet.

Work-related quotas are defined as standards that mandate, within a defined time period, an employee’s specified productivity speed, quantified number of tasks, or quantified amount of material to be handled or produced. The law would prohibit quotas that interfere with required meal or rest periods or use of bathroom facilities.

The bill also imposes recordkeeping requirements on employers and includes a right to request for current and former employees to obtain certain records, such as written descriptions of quotas that affected the employees. Employers would also be subject to the bill’s anti-retaliation provision.

The law would take effect 60 days after the Governor signs the bill. Civil penalties issued for non-compliance could be up to $1,000 for the first violation, $2,000 for a second violation, and $3,000 for all subsequent violations.

Expanding Protections for Freelancers: Freelance Isn’t Free Act

Both the New York State Senate and the State Assembly have passed Bill S83698, expanding on a 2017 New York City specific version of the Freelance Isn’t Free Act. The previous bill established a legal definition for freelance labor in New York City and aimed to help freelancers resolve payment issues with their clients. S83698 expands the protections for freelancers state-wide and provides coverage to freelancers who live in other states but conduct business with New York based companies.

The recent act will mandate “that any hiring party across the state retaining a freelancer’s services for at least $250 provide such freelancer with a detailed written contract and timely and full payment.” If the contract does not specify a “timely manner,” then the hiring party must pay the contracted party “no later than thirty days after the completion of the freelance worker’s services under the contract.” Additionally, the bill contains an anti-retaliation provision to further protect freelance workers.

The new legislation comes as a response to the many unlawful payment practices complaints filed by freelance workers amidst the COVID lockdown.  Independent contractors, unlike regular employees, are not protected by the same minimum wage laws and are generally not eligible for unemployment and workers compensation.

The bill is set to be delivered to the Governor for either a signature or veto. If the Governor signs the bill, it will take effect 180 days later.  A violation of any of the law’s provisions may result in penalties up to $25,000.

Welcome back to Ballard Spahr’s New York Minute.  Below are some of the latest developments impacting employers in the fast-paced and ever-evolving New York market.  Please contact us with questions regarding the topics below or for any other guidance related employment laws covering New York employers.

Electronic Employee Monitoring Law Effective May 7, 2022

Beginning May 7, 2022, New York employers that electronically monitor phones, emails, and/or internet usage (among other sources) will be required to give written notice of that monitoring to new employees upon hiring, and must also post a notice of those monitoring efforts in the workplace.

Pay Transparency Law Update – Guidance and Pending Amendments that May Push the Law’s Effective Date

New York City has introduced guidance regarding its pay transparency law – currently set to become effective May 15, 2022 – which requires employers employing four or more workers to include a good faith salary range (i.e., the minimum and maximum salary for any position) in any advertisements for a job, promotion, or transfer opportunity performed in NYC.  The new guidance issued by the New York City Commission on Human Rights, provides further insights into what job listings are covered by the new law (including certain remote positions performed, in whole or in part, in New York City) and what information must be included with job advertisements.

The City has also introduced amendments to the pay transparency law, currently pending, which if passed would, among other things, increase the threshold of the law’s applicability to employers that employ fifteen or more employees and would delay the law’s effective date until November 1, 2022.

EEOC Releases Guidance on Caregiver Discrimination

  • Keeping in mind that New York City law already expressly prohibits discrimination based on “caregiver” status, and that New York State law prohibits discrimination based on “familial status,” New York employers can now also refer to recent guidance from the EEOC entitled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law” and its updated COVID-19 “What You Should Know” document, both of which explain how discrimination against individuals with caregiving responsibilities may trigger liability under federal anti-discrimination statutes.  The EEOC’s guidance provides pandemic-specific examples of discrimination against caregivers that might trigger such liability – g., it would be unlawful for an employer to refuse to hire a female applicant based on the assumption that she would be charged with child care duties during any quarantine, illness or remote schooling because of her sex.
  • In addition, the EEOC’s “What You Should Know” updates contain new guidance (in question and answer format) regarding types of caregiver discrimination that would violate laws enforced by the EEOC and also include guidance on equitably enforcing policies regarding modified and telework schedules.

Release of Personnel Files as Retaliation Under the New York State Human Rights Law (“NYSHRL”)

  • Effective immediately, employers in New York are prohibited from disclosing the personnel file of an employee who opposed unlawful discrimination under the NYSHRL, filed a complaint alleging violations of the NYSHRL, or participated in a legal proceeding involving the NYSHRL, to an unauthorized third party for any reason.  The amendment to the NYSHRL does not define “personnel file,” but it includes documents such as performance evaluations, complaints from guests or co-workers, disciplinary forms, attendance records, forms that relate to transfers and promotions or demotions, and termination forms.  The amendment also clarifies that it is not retaliation for an employer to release personnel records where it is necessary to respond to a complaint or administrative proceeding.

Pending Amendments in the New York State Legislature Would Expand Employee Protections

  • No Rehire Clauses in Settlement Agreements
    • The New York State Senate via Senate Bill S766 has passed legislation that would make any release of a claim by an employee against an employer unenforceable if that employee, as part of that release, is prohibited from applying for or accepting future employment with that employer.
  • Let Survivors Speak Act
    • Senate Bill S738 would prohibit settlement agreements involving sexual harassment or any form of discrimination prohibited by law that require employees to pay liquidated damages for violations of non-disclosure provisions included in such agreements.
  • Increased Statute of Limitations for Discrimination Claims
    • Senate Bill 566A would extend the statute of limitations of the NYSHRL for filing complaints about alleged discriminatory practices to the New York State Division of Human Rights from one year to three years, consistent with the current statute of limitations for complaints alleging sexual harassment.
    • Senate Bill 849A would amend the New York Civil Practice Law and Rules to extend the statute of limitations for civil actions alleging unlawful discrimination from three years to six years.  The legislature reasoned that victims of workplace harassment may not come forward for some time, and that by extending the amount of time they have to file a claim, the bill will better protect victims of workplace discrimination.

Federal Court Rules in Favor of Testing for Marijuana Usage Under New York City Human Rights Law Exception

On April 12, 2022, in Thomas v. Amazon.com Inc.,  1:21-cv-01325, the United States District Court for the Eastern District of New York dismissed a proposed class action lawsuit against Amazon.com, Inc. that was brought against the company pursuant to the New York City Human Rights Law (“NYCHRL”), which prohibits employers from testing most workers for marijuana as a condition of employment.   Several individuals who had their offers to work pulled following positive tests for marijuana during a pre-employment drug screening sued the company, alleging that its policy of screening potential new hires for marijuana violates the NYCHRL’s prohibition.

The Court dismissed the lawsuit because the position of the prospective employees in the case was that of “sortation associate,” which the Court found to be within the exception to the NYCHRL’s prohibition for jobs involving the operation of heavy machinery.  Because the sortation associate position required the use of industrial conveyors and monitoring the flow of object traffic, the Court found that “there are a multitude of ways a marijuana-impaired employee could cause accidents,” such that the exception applied.

A quick update on key legal developments for employers with employees in New York.

  • Whistleblower Protections. Expanded whistleblower protections under New York Labor Law Section 740 are now in place. Effective January 26, 2022, the amendments to Section 740 expand private-sector whistleblower protections beyond reports of public health and safety concerns and health care fraud. As amended, the law’s protections extend to individuals (including former employees and independent contractors) who report, or threaten to report, any activity they reasonably believe is a violation of law, rule, or regulation or a substantial and specific danger to public health and safety. In addition, the amendments extended the statute of limitations for a New York whistleblower claim from one to two years, and expanded the definition of retaliatory action, among other changes.
  • HERO Act. The HERO Act has been extended through March 17, 2022. Due to continued transmission of COVID-19, New York extended the HERO Act, which requires employers to adopt an industry specific workplace health and safety plan to protect employees against exposure from COVID-19.
  • Employee Monitoring. Effective May, 7, 2022, New York employers that monitor employee electronic activity must notify employees of that electronic monitoring. Employers that electronically monitor phones, emails, and/or internet usage (among other sources) will be required to give written notice of that monitoring to new employees upon hiring, obtain written acknowledgement of that notice, and must post a notice of those monitoring efforts in the workplace in a “conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.” For purposes of this notice, employees must be advised 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, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.”
  • Publishing Salary Ranges. As of May 15, 2022, employers employing four or more workers must include a good faith salary range (i.e., the minimum and maximum salary for any position) in any advertisements for a job, promotion, or transfer opportunity performed in NYC.
  • State Paid Family Leave Expanded. As of January 1, 2023, New York State’s Paid Family Leave will permit employees to take leave to care for a sibling with a serious health condition.

Ballard Spahr’s Labor and Employment attorneys are here to provide guidance and answer questions about issues facing employers with employees in New York.