New York Employment Law 2023 Rearview and Looking Ahead to 2024
Here’s a roundup of some of the New York State and City laws that went into effect in 2023 for which employers will want to ensure they are in compliance.
New York City Adds Height and Weight as Protected Categories to the New York City Human Rights Law (NYCHRL)
Who: New York City employers with four or more employees.
What: The NYCHRL now protects individuals from discrimination on the basis of their height and weight in employment. Certain exceptions apply if a job’s essential functions require a certain height/weight.
When: Nov. 22, 2023
How do I comply? Ensure your policies are updated to include these new categories and employees are trained to avoid discriminatory actions based upon an employee/candidate’s height or weight. Additionally, job descriptions should be reviewed and revised if specific jobs have bona fide job requirements related to height or weight that meet the City’s specified exceptions.
New York Bans Liquidated Damages for Confidentiality or Non-Disparagement Breaches in Discrimination Release Agreements and Amends 21-Day Waiting Period for Confidentiality in Settlement Agreements
Who: All New York employers.
What: Release agreements between an employer and employee predicated on any claim of discrimination, harassment or retaliation are prohibited from including a liquidated damages clause requiring an employee to pay the employer any damages for that employee’s breach of a confidentiality or non-disparagement clause. Nor can such agreement require an affirmative statement by the employee that the employee was not subject to any unlawful discrimination. Additionally, the amendment adjusts the requirement of the 21-day waiting period for an employee whose preference it is to include a confidentiality clause related to their underlying claims of discrimination, harassment and retaliation in a settlement agreement to up to 21 days, permitting the employee to sign the preference agreement earlier than the 21 days.
When: Nov. 17, 2023
How do I comply? Review your release agreements to ensure compliance and avoid voiding any future release agreements.
Employers Must Provide Notice of Eligibility for Unemployment Insurance When Hours Are Reduced, or Temporary or Permanent Separation of Employment Occurs
Who: All New York employers.
What: An act codifying the unemployment regulation that employers must provide notice to their employees stating they are eligible for unemployment insurance when a permanent separation occurs, and expanding such notice to be required also when a temporary separation occurs or an employer reduces an employee’s hours.
When: Nov. 13, 2023
How do I comply? Employers should provide notice that they qualify for unemployment insurance to: (1) all separated employees (even if such separation is temporary) as well as (2) employees whose hours are reduced to 30 hours or fewer per week or such reduction results in the employee making less than $504 per week (even if temporary). Such notice can be provided via the Unemployment Division’s Form IA 12.3.
New York Prohibits Employers From Disciplining Employees Who Do Not Participate in Employer Meetings Related to an Employer’s Political or Religious Views
Who: All New York employers.
What: Employers may not discipline employees for not attending employer-sponsored meetings related to the employer’s opinion on political or religious matters.
When: Sept. 6, 2023.
How do I comply? Ensure that a sign is posted to inform employees of their rights of this section and ensure that employees are trained to avoid requiring employees to attend such meetings.
New York’s Pay Transparency Act
Who: Any employer with four or more employees, when the position being advertised will be performed in New York or report to someone in New York.
What: Employers are required to post the reasonably anticipated salary (or range) and the job description (if one exists) for any job advertisement — either externally or internally — that will be performed in New York or report to someone in New York.
When: Sept. 17, 2023.
How do I comply? Ensure all job advertisements — including internal, external and third-party — comply with the requirements, and train those making such posts to ensure compliance.
New York City’s Local Law 144 Regarding Automated Employment Decision Tools Law
Who: All employers with employees in New York City.
What: The law regulates the use of automated tools used to screen candidates or employees for job decisions for New York City employment.
When: July 5, 2023.
How do I comply? Employers must provide notice to candidates or employees regarding the use of such tools and have an independent auditor audit the tools for any bias (as related to sex, race/ethnicity and intersectional categories) and publish those results.
New York WARN Amendments
Who: All employers with 50 or more employees within New York State.
What: The act was amended to include remote employees in the number of employees if they are based at a New York site, provide employers with the ability to apply for an exception from the 90-day notification period in certain instances, expand the unforeseeable business circumstances exception to include a public health emergency, expand the number of entities who must receive notice, and provide additional information in the notices to employees.
When: June 23, 2023
How do I comply? Employers with 50 or more employees within New York State should seek employment counsel if they are reducing several employees’ hours, conducting a layoff, or shutting down a plant to ensure they have met all the statute’s requirements.
What’s Coming in 2024?
Here is a list of what is coming down the pike for New York employers in 2024. Employers may wish to get ahead of certain effective dates to ensure compliance in advance.
Increased Salary Thresholds for Exempt Employees in New York Related to New York Labor Law (NYLL) Article 6 Protections Related to Method and Frequency of Pay
Who: All New York employers.
What: The threshold weekly salary for exempt employees for purposes of method and frequency of pay protections will be raised from $900 per week ($46,800 per year) to $1,300 per week ($67,600 per year). Note that this does not relate to exempt status for overtime or minimum wage purposes.
When: March 13, 2024
How do I Comply? Audit employees who are classified as exempt to ensure they are paid on a salary basis that is at least the level of minimum threshold. If they do not meet this requirement, the salary either needs to be increased or the individual should be re-classified as non-exempt. Note that this is a higher threshold than even the proposed minimum wage threshold, so an employee may be exempt for minimum wage/overtime purposes, but not exempt for the method and frequency of payment protections. Now is also a good time to audit employees to ensure they are correctly classified for minimum wage/overtime purposes.
New York State Will Extend the Statute of Limitations for All Claims Under the New York State Human Rights Law (NYSHRL) by Three Years
Who: All New York employers.
What: All claims of discriminatory practices under the NYSHRL that arise on or after Feb. 15, 2024 will have a three-year period for a plaintiff to make such claim (current limit is one year for all claims, except sex harassment, which is three years).
When: Feb. 15, 2024
How do I comply? There’s no action for you to take here. Just note employees will have an extra two years to bring these claims, which makes anti-harassment and anti-discrimination training for both line employees and supervisors all the more important.
New York State’s Freelance Isn’t Free Act
Who: All hiring entities engaging freelancers (i.e., individual service providers) in New York except sales representatives (as defined by NYLL), practicing attorneys, licensed medical professionals or construction contractors providing services for a single hiring party worth $800 or more (either separately, or aggregated within the preceding 120 days).
What: A written agreement must provide the terms of engagement between the hiring party and freelance worker and a copy must be provided to the freelance worker. The agreement must contain certain terms enumerated by the act. The measure also includes an anti-retaliation provision.
When: May 20, 2024
How do I comply? Ensure all those who hire independent contractors are trained on the requirement to have an agreement and anti-retaliation provisions included. Ensure the freelancer is provided a copy of the agreement and that a copy is retained by the employer for at least six years.
Anti-Compete Restrictions?
New York Gov. Kathy Hochul vetoed the most recent bill attempting to restrict noncompetes, but this issue has been at the forefront not only in New York, but across the country. Indeed, a rule that would ban noncompetes is still pending with the Federal Trade Commission. Relatedly, it is very possible that the New York legislature brings a revised bill on this issue to Hochul. She has signaled a desire to sign such legislation, provided it is sufficiently narrowed to protect lower-wage earners while still permitting high-wage earners in sensitive positions to be subject to noncompetes. In the meantime, employers would be wise to proactively tailor such agreements to be as narrow as necessary to protect any trade secrets or company information without unnecessarily restricting an employee.
In addition to the above specific changes, the beginning of the year is always a good time to review handbooks and policies to ensure they are still up to date. This is especially true this year where there has been a particularly active National Labor Relations Board that has focused on workplace policies, including those with respect to confidentiality, non-disparagement and any policy that an employee “would reasonably construe” as restricting their Section 7 rights to discuss the terms and conditions of their employment. Employers should note that this board is not just a concern for those employers who already have unions, but an issue for all employers of which to be aware.
To learn more about these recent and upcoming changes to employment law and how to address these issues at your workplace, contact Employment Law Solutions.