2018 saw a big shift in regards to employment, as new laws were presented. So far, 2019 appears to be following suit with changes stirring at the state level and local level.
Overview of Changes in New York Employment Law
New York State and New York City made big strides affecting employees and employers in 2018. Many of the changes aim to make workers feel safe, secure, and that their voices are being heard. The following issues were addressed at the state and local level with new legislation in 2018:
- Sexual harassment in the workplace
- Partial paid family leave benefits
- Paid safe leave
- Temporary schedule change request
- Minimum wage
Following the #MeToo movement, a movement against sexual assault and sexual harassment, multiple laws were passed at the state and city levels to combat sexual misconduct in the workplace.
More consideration was given to the working mothers, fathers, guardians, and families, in general. The New York Paid Family Leave Benefits Law, which allows for eight weeks of partially paid leave, took effect. The benefit is funded by deductions taken from the paychecks of employees.
The Earned Sick Time Act was amended to include “safe time.” Safe time is paid leave that you can use for seeking legal assistance or help from law enforcement for matters relating to sexual assault, domestic violence, or stalking. It can also be used for recovery time for such instances. Employees who are victims or victims’ family members can take safe leave.
As we begin to see how the law changes from 2018 affect us in 2019, the momentum will not slow down. New York employment laws will continue to transform with workers’ best interests in mind. The following issues are set to affect NY employment law in 2019:
- Minimum wage
- Minimum salary threshold
- Additional benefits
- Updating employer handbooks and policies
Closing out 2018, it was announced that the minimum wage in New York City would increase to $15 by the end of 2019. Additionally, as of December 31, 2018, minimum salary thresholds for exemption would also see an increase. This statewide increase will affect New York employers with employees who have administrative or executive exemptions from overtime.
Local laws providing additional employee benefits will take effect throughout the New York City metropolitan area. Some of these changes include lactation room access for breastfeeding mothers and sick leave. A law also passed making it illegal for employers to inquire about past salary history, as well as offer compensation based off of prior pay history.
With all of these big changes happening in quick succession, it is important for employers to update all employee and company materials with the new laws and policies. Such documents include employee handbooks, posters, and agreements. This will ensure compliance with the latest applicable state and local requirements.
Detailed Updates to New York Employment Law in 2018
Paid Family Leave Law Benefits Increase
The New York Paid Family Leave Benefits Law took effect in 2018, under which employees are allowed eight weeks of partial paid leave. In 2019, the eight weeks has increased, and employees are now allowed up to 10 weeks of partial paid leave. Pay-wise, employees will receive up to 55% of the New York average weekly wage. The statewide weekly average is $1,357.11, so the maximum a worker can receive is $746.41 per week. As of February 3, 2019, paid family leave can also be used to take care of any relatives preparing to undergo an organ or tissue donation or healing from an organ or tissue donation surgery.
Prevention of Sexual Harassment
Finally listening to employee concerns after the force of the #MeToo movement, New York addressed sexual harassment in the workplace. Laws were passed at both the state and local levels aimed to prevent sexual misconduct. The backbone of these laws is education - all employees are required to update policies with messages of anti-sexual harassment and provide anti-sexual misconduct training. Depending on the scope of the contracts, this may extend to independent contract workers, as well. In addition, employers are not allowed to enter into agreements requiring negotiation of claims of sexual harassment. If they do agree to resolve sexual misconduct claims, there must be separate agreements, so that the initial claims remain absolutely confidential.
Agreements may be initiated by the employer or the employee. This is the required process for such agreements:
- All parties involved must be given a settlement agreement containing a non-disclosure requirement or the non-disclosure requirement by itself. The complainant has a minimum of 21 days to consider whether or not he/she wants to include the requirement. This period of time cannot be waived or shortened.
- Once the 21 days have gone by and the complainant agrees to include the non-disclosure requirement in the settlement agreement, this decision must be written up in a separate agreement and then signed by all parties involved.
- Once the separate agreement has been signed by all, the complainant has one week to change his/her mind.
Mandatory Anti-Sexual Harassment Policies and Procedures
All NY employers must provide their workers with a sexual harassment policy in writing once per year. The NY State Department of Labor created a model policy that covers the minimum standards that are required by law. They also created a model complaint form. New York employers can use these to hand out to employees or simply use them as a reference to create their own. The materials developed by the state department can be found on the New York State website.
There is also a required sexual harassment poster that all New York City employers must post in plain sight for all employees to see. It must be written in English and also Spanish. A sexual misconduct fact sheet must also be given to all new hires. The fact sheet can be made available in the employee handbook
Required Sexual Harassment Prevention Training
Every employer in the state of NY must have a training set up annually by October 9, 2019, to train each of their workers on how to prevent sexual misconduct. This also applies to all employees who plan to work in New York State for any amount of time, regardless of being based in NY or not. The New York City law has a similar training requirement that must go into effect by April 1, 2019. This applies to all employers who have over 15 workers any time within one calendar year, including independent contractors. New hires must have been given the training within 90 days of their hire date. NYC employers are required to give this training to all of their contract workers, as well, if they have not already had the training somewhere else. As specified by the New York City Commission on Human Rights, employers who have employees in different cities around the state of New York and also NYC will not be required to give separate training for each location, as the training requirements will be matched.
By April 1, 2019, a virtual training program will be made available thanks to the NYC Commission on Human Rights and the New York State Division of Human Rights. The program will be available in a variety of languages to cater to those who do not identify English as their native language. It is also a requirement for all employers to offer the training in the primary language spoken by their employees. Languages will include Chinese, Korean, Spanish, Italian, Russian, Bengali, Haitian-Creole, and Polish.
Keeping Records of Training
While the state of New York encourages that a record be kept of all employees who have received training, including signatures, it is not a requirement. That said, NYC employers are required to collect signatures (virtual or written) from all employees acknowledging that they received anti-sexual harassment training. These records must be kept for a minimum of three years.
NYS Government Contractors Certifications
There are additional requirements for employers who plan on bidding for state or public contracts. As of January 1, 2019, they must provide certification to affirm that they provide the annual anti-sexual harassment training and materials to all of their employees, including those that work out-of-state. All programs and materials must meet state law requirements. The must exhibit that they are in compliance with the required anti-sexual harassment policy and training requirements.
NYC Sick Leave Law - Safe Leave Addition
The Earned Sick Time Act was updated in 2018 to let employees use the time for safe leave. This means they could utilize their earned paid time off hours to take care of varying matters, from family offenses and sexual offenses to stalking or human trafficking. Documentation may be required by employers to ensure that the use of safe leave is covered by the NYC Sick Leave Law.
It is the employer’s responsibility to give their employees written notice of their rights regarding the NYC Sick Leave Law. They should receive this upon hire and within two weeks of any updates to the policy. Additionally, the materials must be available in the employee’s spoken language, as well as English. A written record must be kept of the exact date that the notice was given to the employee. There must also be proof that it was received by the employee. Each time an employee used safe or sick leave, the date, hours, and amount paid must be recorded.
Temporary Schedule Changes
Taking effect on July 18, 2018, the New York City Fair Work Leave Law gave employees the opportunity to temporarily adjust their work schedule for two days each year for “personal events.” In order to take advantage of this law, the employee must have been employed for a minimum of 120 days. This allows workers to save their paid safe and sick leave without having to use up this time beforehand. The following qualify as “personal events”:
- Caring for a child or care recipient
- Attending a legal proceeding to which the employee, family member, or care recipient is a party
- A circumstance that safe and sick leave would cover
2019 Increase of Minimum Wage
The hourly minimum wage increased on December 31, 2018, as well as the minimum salary threshold in order for employees to be eligible for executive/administrative exemptions from state laws regarding minimum wage and overtime. Those who work in the fast food restaurant industry or rely on tips as part of their pay are still subject to minimum wage thresholds.
Detailed Updates to New York Employment Law in 2019
Access to Lactation Rooms in New York City
NYC employers must provide access to a lactation room at the request of any employee by March 18, 2019. They must also supply a written policy for the lactation room and distribute it to employees upon hire. The lactation room is required to be a private, sanitary space that can be used for a breastfeeding mother to express breast milk while she is at work. The room must include an electrical outlet, a comfortable seat, a table or surface to place the breast pump and other items, as well as running water close by. If the employer demonstrates that a lactation room would cause undue hardship, the employer must provide alternate accommodations.
Additionally, as a part of the law, the New York City Commission on Human Rights will develop a model lactation room policy and model form for a lactation room request with the help of the Department of Health and Mental Hygiene.
New York City Human Rights Law Amendment
The New York City Council passed an amendment on December 20, 2019, to the City’s Human Rights Law to prohibit discrimination in employment and discriminatory harassment or violence, based on an individual’s sexual and reproductive health decisions. Sexual and reproductive health decisions include any decision to receive services relating to sexual and reproductive health, including the reproductive system and its functions. Such services would include but are not limited to, fertility-related medical procedures, sexually transmitted disease prevention, testing and treatment, and family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion. The Mayor is expected to sign this bill into law.
New York City Human Rights Law Amendment
The NYC Council passed an amendment to the City’s Human Rights Law that prohibited discrimination and harassment based on someone’s sexual decisions or reproductive health choices. This bill is expected to be signed by the mayor in 2019.
Westchester County Requires Employers to Provide Sick Leave
Taking effect on April 10, 2019, Westchester County’s own paid sick leave ordinance will give sick leave to all employees except those covered by a collective bargaining agreement. That said, the law will apply to those covered by a collective bargaining agreement once the agreement expires, unless it includes an alternative benefit comparable to that of the Westchester sick leave law or waives the law. All private employers who has over five employees must offer paid sick leave to those who work 80 hours or more annually in Westchester County. Other employers are required to offer unpaid sick leave to those employees.
Here are the five reasons that employees can take sick leave:
- Mental or physical illness, injury or health condition (their own or a relative's)
- Medical diagnosis, care or treatment of a medical condition (their own or a relative's)
- Preventive medical care (their own or a relative's)
- Place of business or their child’s day care or school is closed due to a public health emergency
- A public health authority determines that the employee or family member may pose a toxic threat due to the individual’s exposure to a communicable disease
It is important to note that in this case, safe leave is not covered.
This law provides at least 40 hours of paid sick leave each year. The employees will accrue one hour of leave for every 30 hours that they work. They will begin accruing hours from their start date or 90 days after the law goes into effect; it depends on which date is later. It is at the employer’s discretion whether or not they want to institute a 90-day probation period before the employee can begin using sick leave. Unused paid leave may roll over to the next year, but it is up to the employer if they want to put a cap on the number of hours.
Westchester County's Box Ban
Westchester County passed a law that made it illegal for employers to inquire about an applicant's criminal record or history on an initial application. It amends the Westchester County Human Rights Law, but will still allow employers to ask about criminal past at other points during the hiring process, such as in-person interviews or during a background check. This "ban-the-box" law is expected to take effect on March 3, 2019.
Suffolk County Bans Salary History Inquiries
Suffolk County passed a bill in November of 2018 making it illegal for employers to inquire about an applicant's past salary history or do any further investigative research in prior compensation history. The law is expected to take effect on June 30, 2019.
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