Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.
On January 26, 2023, I presented a complimentary webinar entitled “2023 New York Paid Family Leave Update”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.
In the webinar, I discuss:
Employer & Employee Coverage
Contributions & Benefit Rates
Qualifying Circumstances
Program Updates & Amendments
Interaction with Other Leaves
and much more!
The New York Paid Family Leave Program took effect January 1, 2018. Five years later, PFL continues to evolve each year, For example, employee contributions and benefit rates change annually. There have also been statutory amendments to the law since it launched. This webinar recaps the fundamental aspects of PFL, identifies the key updates, and discusses compliance issues and strategies.
Why You Should Watch “2023 New York Paid Family Leave Update”
Virtually all private employers with at least one employee in New York State must be familiar with New York’s Paid Family Leave Program. Especially post-pandemic, this includes out-of-state employers with employees working remotely in the State of New York.
From describing the necessary insurance coverage and related administrative issues to contemplating the interaction between PFL, the FMLA, and other forms of employee leave, this webinar provides a broad overview of the New York Paid Family Leave program in 2023.
Whether you don’t know whether your company has all its bases covered or are looking for nuanced guidance on applying PFL in your workplace, this webinar will help further orient you. Materials include statistical charts on how the costs and benefits of PFL have changed over the past five years and other information that will help you answer questions from other members of management and employees alike.
The National Labor Relations Board began announcing an increase in union organizing activity in early 2022. More detailed analysis showed that those gains were primarily driven by elections at numerous Starbucks stores. Otherwise, the 2022 election statistics only suggested a return to pre-COVID levels. Now, however, statistics from the final three months of calendar year 2022, appear to reflect a general increase in union election filings entering 2023.
Starbucks Effect
Election petitions involving Starbucks stores accounted for an overwhelming proportion of the NLRB’s reported increase in union election filings in its fiscal year 2022 (from October 2021 through September 2022). For more, read Why Are Union Elections Increasing in 2022?
In NLRB FY 2022, there were 349 election petitions filed seeking union representation at Starbucks stores. To date, the union has won recognition in 223 cases and lost 48 times. Twenty-nine of the petitions have been withdrawn or dismissed for various reasons. Forty-nine of the cases remain open.
Excluding Starbucks cases, 1,345 union representation petitions were filed with the NLRB between January 1, 2022, and September 30, 2022. Though the numbers were much lower in 2020 and 2021 during the height of the COVID-19 pandemic, the same period in pre-COVID 2019 saw 1,329 union representation petitions filed. In other words, Starbucks-adjusted, there was only a 1% increase in 2022.
New Year Uptick
Entering 2023, continued increases in union representation elections seem to exceed any direct Starbucks or COVID impact.
Over the second half of NLRB FY 2022 (April-September), non-Starbucks union election petitions (922) were actually below the total for the same period in 2019 (943). The fourth quarter of FY 2022 (July-September) saw only a minimal increase from 453 to 464 compared to 2019.
Then, from October 1 through December 31, 2022, there were 437 union election petitions filed that didn’t involve Starbucks. That represents a 16% increase from the same “post-COVID” period in 2021 and a nearly 8% increase from the same pre-COVID period in 2019.
Note that Starbucks employees are still seeking representation at new stores. Thirty-six union representation petitions were filed between October and December 2022. Only 11 were filed during those months the previous year, when the Starbucks organizing campaign had just begun. But the Starbucks monthly filing rate has decreased to about a third of what it was in NLRB FY 2022.
Where Are Union Elections Becoming More Likely?
A few states substantially account for the recent increase in Starbucks-adjusted union representation petition filings. Due to differences in population and other factors, such as historical union activity, the typical number of petitions varies considerably between states. Thus, a proportional increase in filings in a given state will have a greater or lesser impact on the total number of election petitions filed nationwide.
First, let’s look at the total number of union representation petitions filed between October and December over the past few years in several notable states. These are listed in the chart below.
Union Election Petitions Filed Oct.-Dec.
2019
2020
2021
2022
California
52
51
47
74
DC
9
10
13
15
Georgia
5
0
3
7
Massachusetts
18
8
4
24
New York
67
40
42
54
Tennessee
1
1
2
5
Texas
9
8
7
17
Not surprisingly, California had the most petitions between October and December 2022. Conversely, Southern states Georgia and Tennessee had only about a handful. And Texas had relatively few compared to its overall population. However, these states had proportionally more union representation petitions filed in Oct.-Dec. 2022 than over the same months in the recent past.
Here are the ranked percentage increases in union election filings for these states for Q1 of the NLRB fiscal years 2022 and 2023:
Massachusetts: 500%
Tennessee: 150%
Texas: 143%
Georgia: 133%
California: 57%
New York: 29%
DC: 15%
And here are the percentage increases between the first quarters of the NLRB fiscal years 2023 and 2020 (the last fully pre-COVID quarter):
Tennessee: 400%
Texas: 89%
DC: 67%
California: 42%
Georgia: 40%
Massachusetts: 33%
New York: -19%
Large Labor-Friendly States: A Closer Look
New York
Yes, to be clear, total union representation petitions filed in New York remain below pre-COVID levels. But they are up over last year. Frankly, New York probably wouldn’t be worth mentioning here, except that it normally accounts for a significant portion of the union elections filed with the NLRB. So a modest increase from Q1 FY 2022 to Q1 FY 2023 has a material impact on the total nationwide increase. As previously discussed, it is plausible that union organizing in New York is still recovering from COVID-19 at a slower rate than the rest of the country.
In fact, we can dig deeper and learn that non-Starbucks petitions are essentially flat throughout most of New York State. All of the year-over-year increase comes from Region 29 of the NLRB. Region 29 is based in Brooklyn and covers Brooklyn, Queens, Staten Island, and Long Island. NLRB Q1 union representation petitions not involving Starbucks increased from 7 in FY 2022 to 19 in FY 2023. But that number still falls well below the 33 such filings in Oct. through Dec. 2019 (Q1 FY 2020). Meanwhile, Manhattan and Upstate New York filings have remained surprisingly consistent, with hardly any deviation among the first quarters of fiscal years 2020, 2022, and 2023.
California
Similarly, California’s increase is localized to two of the four NLRB regions covering the state: Region 20, based in San Francisco, serving the northernmost part of the state, and Region 21, based in Los Angeles and San Diego, serving the southernmost part.
California union representation petitions increased from 10 in Q1 FY 2022 to 21 in Q1 FY 2023 in Region 20 and from 12 to 21 in Region 21. The Q1 FY 2020 filings were 9 for Region 20 and 14 for Region 21, showing more than just a return to pre-COVID levels. While the central California Regions (31 and 32) increased slightly between Q1 FY 2022 and 2023, both Regions are still roughly even with Q1 FY 2020 petitions.
Decertification Petitions
The corollary to an NLRB petition seeking union representation (known as an “RC” petition) is a decertification (“RD”) petition seeking the removal of a previously recognized union representative. An earlier analysis of RD petitions for the first half of FY 2022 supported the conclusion that last year’s increase in RC filings (not involving Starbucks) may have been a COVID-related phenomenon. A 42% year-over-year increase in RD petitions over that period was actually higher than the Starbucks-excluded increase among RC petitions (36%).
Decertification petition filings remained at or above pre-COVID levels throughout FY 2022. However, it appears that trend may be dissipating. Seventy RD petitions were filed with the NLRB between October and December 2022–virtually the same as the 71 filed in the same period in 2021. While still higher than the 56 filed in October-December 2019, the RD petitions filed in Q1 FY 2023 remain below the levels for the same period of 2017 (82) and 2018 (76).
Representation Election Results
Unions typically win about 70% of the representation elections held. Many petitions filed in Q1 FY 2023 have not yet resulted in elections. Among those that have, unions have won about 75% of the time. But with so many cases yet to be decided, we don’t know whether unions are really becoming more likely to win representation status.
What Does the Recent Increase in Union Elections Means for Employers in 2023?
It’s really still too early to tell. But the latest statistics start to suggest a measurable shift toward greater unionization at private sector companies in the United States. Certain Southern states might be experiencing a particular renewed interest in union activity. Georgia, Tennessee, and Texas might constitute a current “watch list.” Areas with an existing higher propensity toward unionization, like parts of California, New York, and Massachusetts, may also be undergoing renewed employee interest in organizing.
Employers should continue to monitor these data, especially if they have any reason to suspect union organizing in their workplace.
On December 21, 2022, Governor Kathy Hochul signed legislation establishing a statewide New York pay transparency law. When the law takes effect on September 17, 2023, it will require covered employers to list salary or wage ranges for all advertised jobs and promotions. Employers must also publish the job description if one exists.
These new pay transparency disclosures aim to empower workers with more information to reduce discriminatory wage and hiring practices. In particular, Gov. Hochul stated that this legal measure will provide a “critical tool in our efforts to end pervasive pay gaps for women and people of color.” It remains to be seen how much clarity the law will actually produce for workers at the expense of increased compliance responsibilities on employers.
The State law expands on pay disclosure requirements that took effect in New York City in 2022.
Covered Employers
The New York pay transparency requirements will apply to employers with four or more employees. However, there is a partial exception for staffing companies that place employees with various other organizations on a temporary basis.
The law also appears to impose compliance obligations on any “agents” of a covered employer who are responsible for advertising job openings.
Due to conflicting definitions of “employer” in the Labor Law, it’s unclear whether the New York pay transparency requirements will apply to public (i.e., governmental) employers.
Mandatory Disclosure Requirement
In advertising a “job, promotion, or transfer opportunity that can or will be performed, at least in part, in the state of New York,” a covered employer must include:
the compensation or range of compensation for such job, promotion, or transfer opportunity; and
the job description for such job, promotion, or transfer opportunity, if such description exists.
Where a position will be compensated solely on a commission basis, the employer can satisfy the compensation disclosure by generally stating that the compensation will be based on commissions.
The New York pay transparency law does not offer much additional clarification on these notice requirements. Instead, it directs the New York Commissioner of Labor to issue rules and regulations to advise employers further on the application of the law.
Recordkeeping
Under the law as originally enacted, employers must maintain records listing the history of compensation ranges for each job, promotion, or transfer opportunity and the job descriptions for such positions, if they exist.
Penalties
Applicants and employees can file a claim of noncompliance with the New York pay transparency law through the New York Department of Labor.
If the DOL finds a violation, it may impose civil penalties of:
$1,000 for the first violation;
$2,000 for the second violation; or
$3,000 for the third or subsequent violation.
The law also prohibits employers from retaliating against individuals for exercising their rights under the New York pay transparency law.
Anticipated Amendments
In signing the new law, Governor Hochul’s approval memorandum indicated that she has “secured an agreement with the Legislature to make technical changes to the bill.” Specifically, she mentioned:
Clarifying what qualifies as “advertising” a job;
Excluding remote job opportunities performed entirely outside of New York without a connection to a New York office or supervisor; and
Eliminating the previous record maintenance requirement for businesses.
On January 11, 2023, Senator Jessica Ramos (the lead sponsor of the original law) introduced a bill (S1326) including amendments based on this agreement with the Governor. As initially drafted, the amendments would:
Explain that a job is only subject to the New York pay transparency law if it will physically be performed, at least in part, within the State, or will physically be performed outside of New York but reports to a supervisor, office, or other work site in New York;
Define “advertise” to mean “to make available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity;” and
Eliminate the law’s specific recordkeeping requirements.
[Update: The amendments were passed by the Legislature and enacted by the Governor’s signature on March 3, 2023.]
Prepare Now
We expect to see both statutory amendments and additional guidance from the NY DOL before the New York pay transparency law takes effect. However, those may not be final until close to the September 2023 effective date. To ensure timely compliance, employers should begin planning in advance. Appropriate actions may include updating methods of determining compensation levels, auditing current compensation under applicable equal pay laws, evaluating recordkeeping protocols and procedures, and reviewing job descriptions. Likewise, employers should anticipate requests for salary reviews from current employees and consider their approach in response to such inquiries.
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