This article was written by Barbara E. Hoey and Steven R. Nevolis, and originally posted to Kelley Drye’s Labor Days Blog.

As we close the books on 2018, New York employers really cannot relax after the bombardment of last year’s employment law changes. Many of these laws will require new levels of compliance in 2019, not to mention the new laws on the horizon.

This post will provide employers with a brief recap of what we saw in 2018, and what we can expect in 2019.

LOOKING BACK ON 2018

As we mentioned in our blog post last January – The New Year Brings New Rules to New York – New York State and City lawmakers were busy in 2018 enacting sweeping employment legislation regarding a variety of topics.

New York State

Paid Family Leave

New York State kicked off 2018 with the implementation of New York’s Paid Family Leave law (“PFL”). We covered the roll-out of this law in November 2017 in our post A New Headache – New York’s Paid Family Leave. The law has now been effect for an entire year, and covered employers should have well-established policies and procedures in place to provide PFL to employees. This includes distributing to employees a written policy regarding PFL, ensuring the employer is covered to provide PFL payments either through an insurance carrier or a self-insured fund, and complying with workplace posting requirements.

Anti-Sexual Harassment Legislation

The #MeToo movement dominated the headlines in 2018, and New York State lawmakers took notice. Throughout the year, the state implemented anti-sexual harassment legislation that touched on everything from employment policies and training, to mandatory arbitration clauses and settlement agreements. We covered these new laws at length in July with our client alert – Fall is Coming! New York’s New Anti-Sexual Harassment Laws Just Around the Corner.

The new State laws are in effect. This means all New York State employers should have already issued a written anti-sexual harassment policy that includes an investigation procedure and complaint form for sexual harassment complaints. Employers should be focused on implementing anti-sexual harassment training that meets all state requirements, which must be completed by October 9, 2019.

Employers should also revise mandatory arbitration agreements to specifically exclude sexual harassment claims. Also, employers cannot require confidentiality in settlement agreements regarding a sexual harassment claim by an employee, unless the employee prefers to have the provision.

New York City

Stop Sexual Harassment Act

On May 9, 2018, New York City lawmakers enacted the Stop Sexual Harassment Act, which requires:

Workplace Postings
As we previously notified employers in September (NYC Employers Take Notice: Notice Requirements Pursuant to the “Stop Sexual Harassment Act” Take Effect September 6, 2018), employers must currently be in compliance with the law’s new posting requirements. Employers are required to post in the workplace a mandatory notice provided by the New York City Commission on Human Rights. Employer must also provide a mandatory notice to all new hires. The notices are found here and here. Employers should also take this opportunity to review all of their workplace postings to ensure that all required postings are in the workplace (such as the PFL posting mentioned above, among others).

Anti-Sexual Harassment Training
Effective April 1, 2019, New York City employers with 15 or more employees must complete annual anti-sexual harassment training for all employees and independent contractors. While the required content of the training largely mirrors the requirements under the New York State law, there are several additional topics that must be covered. These topics include a specific explanation on the responsibilities of managers and supervisors and their role in reporting sexual harassment, and information regarding bystander intervention during sexual harassment situations.

The City Commission recently issued guidance regarding who employers must include in this training (New York City Releases Clarification on Anti-Sexual Harassment Training Requirements). Employers must train all independent contractors and part-time and short term employees who work for the employer more than 90 days and more than 80 hours in a calendar year. Independent contractors who receive training elsewhere need not be trained again by the employer.

The guidance also explains that training must be completed every calendar year. Since all employers must complete training under the New York State law by October 9, 2019, we recommend that covered New York City employers develop training that complies with both New York State and New York City requirements, and complete training by the October 9 deadline. Employers can then develop an annual schedule to keep in compliance for subsequent years.

New York Earned Safe and Sick Time Act

In May 2018, New York City’s Earned Sick Time Act was amended to include coverage for “safe time,” and the law is now known as the Earned Safe and Sick Time Act (“ESSTA”). Under the new amendment, New York City employers must provide sick time under the act to cover “safe time,” which includes instances when an employee or a family member “has been the victim of a family offense matter, sexual offense, stalking, or human trafficking.” New York City employers should ensure their sick time or other paid time off policies are revised to include “safe time” qualifying events.

The New York City Department of Consumer Affairs recently issued amended rules and updated FAQs regarding the ESSTA. Most importantly, the amended rules require that New York City employers issue a written policy (maintained as a “single writing”) regarding leave under the ESSTA, and can no longer rely solely on the DCA’s Notice of Employee Rights to satisfy the law’s policy requirement. This policy must be distributed to employees upon commencement of employment, within 14 days of the effect date of any change to the policy, and upon request by the employee. If any employer is using an alternative form of leave to satisfy the ESSTA requirements (for example, providing paid-time off that can be used for multiples reasons, as opposed to just sick days), then the policy must expressly state that the leave can be used for an ESSTA covered event. Finally, the written policy must include specific confidentiality language as mandated by the DCA.

Employers should be working to ensure they meet these new ESSTA policy requirements as soon as possible.

Cooperative Dialogue for Accommodation Requests

As of October 2018, New York City employers must now engage in a “cooperative dialogue” when an employee makes a disability or religious accommodation request (Happy October! – A New Round of State Sexual Harassment Guidance and City Laws to Kick Off the Scariest Month of the Year). While employers have traditionally engaged in the “interactive process”, this new “cooperative dialogue” will require a more detailed discussion between the employer and employee in order to identify potential accommodations. At the end of the process, employers have to promptly notify the employee in writing regarding the outcome of the process. This is a new requirement that is not found in the “interactive process.”

To that end, New York City employers should consider revising their accommodation policies to include the new requirements under the “cooperative dialogue” law and training employees about the process of requesting an accommodation, and obligations of supervisors and managers when they receive a request.

Fair Workweek Law – Temporary Schedule Change

Changes to New York City’s Fair Workweek Law now has this law on the radar of all New York City employers, not just fast food and retail employers that must abide by the predictable scheduling provisions. In July 2018, amendments to the Fair Workweek Law went into effect requiring employers to provide temporary schedule changes for an employees’ qualifying “personal event.” These new amendments cover most New York City employers.

Under this amendment, an employee can request up to two temporary schedule changes per calendar year for one business day per change (or one change for two business days). The temporary change may include a change to the time or location an employee is expected to work. Employees can make this request for a “personal event,” which means (i) the need for a caregiver to provide care to a qualified individual; (ii) need to attend a covered legal proceeding or hearing for subsistence benefits; and (iii) any event that is permissible for use of leave under the ESSTA. Employers must also post a notice from the DCA titled “You Have a Right to Temporary Changes to Your Work Schedule.”

Employers should be sure to comply with this notice requirement, and to revise applicable policies and provide training for supervisors and managers to ensure compliance with this law.

LOOKING FORWARD TO 2019

With 2018 in the rearview mirror, employers must now focus on 2019. While the year is young, and there is no telling what the employment law landscape will look like at the end of the year, there are several issues that must be on the radars of all employers.

New York State

Increase in PFL Benefits

With New York State PFL here to stay, January 1 will mark the first of three scheduled annual increases of PFL benefits. For 2019, employees who qualify for PFL leave will be entitled to a maximum of 10 weeks of benefits within a 52-consecutive week period (up from 8 weeks in 2018) and will receive payment capped at 55% of the state average weekly wage (up from 50% in 2018), which caps the new weekly benefit at $746.41.

Employers should note that if an employee takes PFL leave in 2018 that extends through 2019, they will receive the paid benefit and number of weeks in effect on the first day of their leave. However, and as explained by New York State’s FAQs on this topic, employees may be eligible for two weeks of additional leave in 2019 in certain circumstances, even if they used all eight weeks in 2018.

Minimum Wage Increase

On December 31, 2018, the minimum wage increased again as part of the state law to ultimately increase the state-wide minimum wage to $15.00 per hour. The new minimum wage standards are:

  • $15.00/hr. – NYC employers with 11 or more employees
  • $13.50/hr. – NYC employers with 10 or fewer employees
  • $12.00/hr. – Nassau, Suffolk, and Westchester counties
  • $11.10/hr. – Remainder of New York State

Note that these rates are different than those for fast food workers and tipped food service workers, who will receive minimum wage pay increases on a separate schedule.

Increase in Salary Threshold for Overtime Exemptions

The New York State salary threshold for those employees who are considered exempt from overtime under the administrative and executive exemptions also increased on December 31, as follows:

  • $1,125/week ($58,500 annually) – NYC employers with 11 or more employees
  • $1,012.50/week ($52,650 annually) – NYC employers with 10 or fewer employees
  • $900/week ($46,800 annually) – Nassau, Suffolk, and Westchester counties
  • $832/week ($43,264 annually) – Remainder of New York State

Anti-Sexual Harassment Legislation

As mentioned above, New York State’s anti-sexual harassment training requirements are in effect for 2019. All covered employers must provide mandatory anti-sexual harassment training by October 9, 2019.

New York City

Lactation Accommodations

Beginning March 19, 2019, New York City employers must implement a policy regarding lactation rooms for nursing mothers, and provide accommodations for nursing mothers for lactation. As required by the law, employers must provide a lactation room and storage refrigerator in reasonable proximity to an employee’s work area. If the employer elects to use a multi-purpose room for lactation purposes, the sole purpose of the room will be as a lactation room when in use by a nursing mother.

Employers must also implement a lactation room accommodation policy, which must be given to all employees upon hire. The policy must specify the means by which an employee may submit a lactation room request, require an employer response within five business days, provide a procedure for when two or more employees must use the lactation room at the same time, allow for a reasonable break for lactation purposes, and allow the employer to engage in a cooperative dialogue if the request for a lactation room presents an undue hardship. The City Commission will develop a model policy in the coming months.

Other Local Laws

Westchester County Sick Leave/Ban the Box

Not to be outdone by its neighbor to the south, Westchester County recently enacted laws providing for paid sick leave, and prohibiting certain criminal history inquiries during the employment application process (known as a “ban the box” law).

Effective April 2019, the “Earned Sick Leave for Certain Employees” ordinance requires Westchester employers to provide employees with up to 40 hours of sick time annually, to be accrued on the basis of one hour of sick time for every 30 hours worked. The sick time will be paid for employers with five or more employees, and unpaid for employers with fewer than five employees. Employers can provide employees with personal time or other paid time off to meet the law’s requirements, so long as the employee is provided with the appropriate amount of time, and can take the time for reasons set forth in the law. Unused sick time can be carried over from year to year; however, the amount of sick time is capped at 40 hours per year. The law also provides procedures for employees to request sick leave, reasons an employee can take sick leave, a requirement that a workplace notice be posted and distributed to employees, and that employers cannot retaliate against employees or interfere with their right to take sick time.

Additionally, on December 3, 2018, the Westchester County Board of Legislators passed a “ban the box” law that would prohibit certain criminal history inquires during the application process. A spokesperson for the Westchester County Executive has released a statement that he intends to sign this bill into law. While not as strict as New York City’s Fair Chance Act, the Westchester law will prohibit employers from making an initial inquiry about an applicant’s criminal conviction or arrest records in an employment application. Additionally, employers will not be allowed to print an advertisement or classified placing a limitation based on a person’s criminal conviction or arrest record.

However, Westchester’s ban the box law does not seem to prohibit questions about criminal conviction and arrest records after an application is submitted. Specifically, the bill states “After submission of an application for employment, an employer may inquire about the applicant’s arrest or conviction record in accordance with New York State Executive Law 296(16).” Based on the plain language of the bill, it appears employers can ask about criminal history after an application is submitted (not after a conditional offer is made, like in New York City). That being said, the employer will still have to follow the procedures of Article 23-A of the New York State Correction Law if they wish to revoke an offer based on the results of a criminal history inquiry.

Suffolk County Salary History Ban

Suffolk County’s salary ban legislation, called the “Restrict Information Regarding Salary and Earnings Act” (“RISE Act”), will go into effect on June 30, 2019. Suffolk County will join New York City, Albany County, and Westchester County as the only jurisdictions in New York with this type of legislation.

To comply with the RISE Act, Suffolk County employers will not be allowed to ask about a job applicants’ salary or wage history, which includes compensation and benefits. This ban extends to written and verbal inquires, as well as a search of publicly available records. Additionally, employers are prohibited from relying on salary history in determining the salary amount at any stage in the employment process. Exempt from the law are any actions an employer must take pursuant to federal, state, or local law that requires disclosure of salary for employment purposes.

Suffolk County employers should act now to ensure that their employment applications do not contain any prohibited questions regarding salary history.

Should you have any questions or concerns about any of these upcoming laws, the labor and employment attorneys at Kelley Drye are here to help.