A series of new laws in New York are set to impact employers and workers across the state in 2020.

New York Labor Law §203-e

On November 8, 2019 Governor Andrew Cuomo signed legislation that protects employees against discrimination on the basis of their reproductive health decision-making. Health decisions are defined as including, but not limited to, the decision to use or access a particular drug, device, or medical service. The legislation, effective immediately, adds a new Section 203-e to the New York State Labor Law and prohibits employers from:

• accessing personal information about an employee’s (or their dependents’) reproductive health decisions, unless the employer receives prior, informed, and written consent;
• discriminating or taking retaliatory action against an employee on the basis of the employee’s (or their dependents’) reproductive health decision-making; or
• requiring an employee to sign a waiver to deny them the right to make their own reproductive health decisions.

The legislation also requires that all New York State employers that furnish an employee handbook/manual to their employees, add a new section to such handbook/manual that provides employees with notice of their rights and remedies under the legislation. Penalties for violation of the new law include back pay, benefits, attorney’s fees and costs incurred to a prevailing employee, injunctive relief, liquidated damages equal to 100% of the award for damages, and civil penalties.

New York Paid Family Leave Law (NYPFL)

For nearly two years the NYPFL has functioned as a comprehensive paid family leave program affording most New York employees the right to take paid leave for the birth, adoption, or foster placement of a new child, to care for a family member with a serious health condition, or when a family member is away on active military duty. The NYPFL was scheduled to fully phase in over the course of four years. Below are the key changes that take effect on January 1, 2020:

• employees who take NYPFL will receive 60% (increased from 55% in 2019) of the lesser of their average weekly wage or the Statewide Average Weekly Wage; and
• the allowable employee contribution rate will increase to 0.270% of an employee’s gross wages each pay period, capped at the Statewide Average Weekly Wage. This means that an employee’s maximum annual contribution will be capped at $196.72.

Employers should also be aware that the available leave time under NYPFL will remain at 10 weeks for 2020 and the benefit rate and amount of leave in effect on an employee’s first day of their leave controls the benefit rate and amount of leave for the entire duration of the leave unless more than three months pass between days of NYPFL use.  If more than three months pass between days of NYPFL use then the law considers this a new NYPFL claim and the employee should be required to file a new request for NYPFL. Employers who furnish an employee handbook/manual to their employees should update the terms of the handbook/manual to reflect the 2020 changes or otherwise inform employees in writing of the changes.  Employers should also be aware of the notice obligations imposed on employers by the Wage Theft Prevention Act when implementing the first 0.270% employee contribution of the year.

New York State Human Rights Law (NYSHRL)

Recent amendments to NYSHRL, enacted by Senate Bill 6577, will afford greater protections to employees and align the NYSHRL more closely with the New York City Human Rights Law.

The key changes for 2020 are as follows:

• effective on February 8, 2020 all employers, regardless of the number of employees, will be subject to the NYSHRL. Previously, the law only applied to employers with four or more employees; and
• effective on August 12, 2020 the statute of limitations to bring sexual harassment claims before the New York State Division of Human Rights extends from one year to three years.

It should be noted that other discrimination and harassment claims will remain subject to the one-year statute of limitations.

Further, the amendments to the NYSHRL prohibit agreements that require mandatory arbitration to resolve any kind of discrimination or harassment claim. However, employers should be aware that the prohibition of the NYSHRL may not be effective due to the application of the Federal Arbitration Act, which promotes arbitration concerning most employers engaged in interstate commerce.

Wage and Hour

As of December 31, 2019, the minimum wage for most employers in New York state shall be:

• New York City with 11 or more employees: $15.00/hour;
• New York City with 10 or fewer employees: $15.00/hour;
• Westchester and Long Island: $13.00/hour; and
• remainder of New York state: $11.80/hour.

As of December 31, 2019 the salary threshold for employees classified as exempt pursuant to the administrative and executive exemptions under New York state law increases dependent upon the location of the employer. The new salary thresholds are as follows:

• New York City: $1,125.00/week (remains the same as 2019);
• Westchester and Long Island: $975.00/week (increased from $900/week); and
• remainder of New York state: $885.00/week (increased from $832.00/week).

 

Fair Labor Standards Act (FLSA) Salary Threshold

As of January 1, 2020 the U.S. Department of Labor (DOL) is raising the salary threshold for the executive, administrative, and professional exemptions under the FLSA to $684.00/week ($35,568/year). Because New York’s salary threshold is greater than the federal FLSA threshold, New York employers must comply with the New York threshold for administrative and executive exemptions.

 

As of January 1, 2020 the highly compensated employee’s total annual compensation threshold will increase to $107,432.00/year (up from $100,000.00/year). The DOL rule allows employers to use nondiscretionary bonuses and incentive payments, paid at least annually, to satisfy up to 10% of the salary threshold.  Employers are permitted to make a “catch up” payment if an employee does not earn enough nondiscretionary bonuses or incentive payments in a given year, as long as the payment is made within one payday of the end of the 52-week period. The highly compensated employee exemption applies to white collar employees who perform exempt office or non-manual work, and customarily perform one or more of the duties required of an exempt executive, administrative, or professional employee and earn an annual salary of $107,432.00/year or more.

Salary History Ban

On July 10, 2019, governor Andrew Cuomo signed S6549/A5308b, which enacts a state-wide salary history inquiry ban. Pursuant to the new legislation, beginning January 6, 2020, no employer shall:

• rely on an applicant’s wage or salary history in determining whether to offer employment or in determining the wage or salary for such individual;
• orally or in writing seek, request, or require an applicant or current employee’s wage or salary history as a condition to be interviewed, as a condition of continuing to be considered for an offer of employment, or as a condition of employment or promotion;
• orally or in writing seek, request, or require an applicant or current employee’s wage or salary history from a current or former employer, current or former employee, or agent of the applicant or current employee’s current or former employer;
• refuse to interview, hire, promote, otherwise employ, or otherwise retaliate in any manner against an applicant or current employee (i) based on the individual’s prior wage or salary history; (ii) based on the individual’s refusal to provide wage or salary history information; or (iii) based on the filing of a complaint with the Division of Human Rights alleging a violation of this law.

Confidentiality Agreements

Beginning January 1, 2020, all non-disclosure agreements (NDAs) entered into as a part of employment contracts in New York state, must include an explicit carve-out allowing the employee or potential employee entering into the NDA to speak with “law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.”  In the absence of such language an NDA will be void and unenforceable to the extent that it prevents disclosure of factual information related to any future claims of discrimination. The legislation applies to “all employers within the state” regardless of the number of employees.

New York State Sexual Harassment Annual Training

Employers in New York state have until October 9, 2020 to conduct interactive training on the prevention of sexual harassment in the workplace. Employees must also be provided with a notice containing the employer’s sexual harassment prevention policy and complaint form, as well as the training materials presented at the employer’s sexual harassment prevention training program “prior to” or “at the time of hire” and at every annual sexual harassment prevention training. The notice may be delivered either digitally or in print form. If delivered digitally, the other documents must be attached or linked to the notice, and if they are made available on a work computer, employees must be able to print a copy for their records. The notice must be provided in the primary language of the employee and employers must designate a person or office to whom employees can go to with questions or to file a complaint, and to provide the appropriate contact information.

New York City Human Rights Law (NYCHRL)

Effective January 11, 2020 New York City Int. 136-A will extend the employment protections of the NYCHRL to freelancers and independent contractors, thereby allowing these workers to file discrimination, harassment, and retaliation complaints with the New York City Commission of Human Rights, or to bring suit in court.  It remains unseen if the broad wording of New York City Int. 136-A may be read to mean that freelancers and independent contractors will receive the same protections as employees falling under the umbrella of the NYCHRL. Such protections include the Fair Chance Act, the Stop Credit Discrimination in Employment Act, the law prohibiting pre-hire salary history inquiries (addressed above), laws addressing reasonable accommodations including the requirement of a cooperative dialogue, accommodation mandates related to pregnancy and lactation, as well as protections afforded to victims of domestic violence, sex offenses and stalking.  The New York City Commission on Human Rights has issued guidance stating that the new law does not affect sexual harassment prevention training which currently does not require an employer to train independent contractors or freelancers who do not work more than 80 hours in a calendar year and at least 90 days in a calendar year.

Drug Testing

Effective May 10, 2020, most employers in New York City will no longer be allowed to require that applicants submit to a pre-employment test for cannabis.  This prohibition is subject to multiple exceptions enumerated in the NYCHRL.  Additionally, the law will not bind employers who are a party to a collective bargaining agreement that “specifically addresses” the drug testing of applicants, but only as to those employees. The law restricts only the testing of prospective employees, so it will have no effect on employer drug-testing programs for current employees. However, New York City employers should not forget their obligation under New York City law to engage in a cooperative dialogue with disabled individuals who may need a reasonable accommodation, which may include certified users of medical cannabis.

 

For more information regarding the above changes coming into effect in 2020, please do not hesitate to reach out and contact us with any questions or requests.