Author: Scott Horton

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.

New York Pay Transparency

Statewide New York Pay Transparency Law Enacted (with Planned Amendments)

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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Electronic Notice Posting

Electronic Notice Posting Required for New York Employers

Effective immediately, New York employers must provide mandatory employee rights notices electronically. Traditionally, employers satisfied their notice posting requirements physically in the workplace, often on bulletin boards or pre-printed posters. According to the Labor Law amendment, electronic notice posting can be accomplished either by email or through the employer’s website.

New York Labor Law Section 201

For many decades, Section 201 of the New York Labor Law has required employers to post certain “copies or abstracts” of employee rights “in a conspicuous place on each floor.”

Employers are generally accustomed to periodically updating the mandatory notices placed on walls or bulletin boards within their facilities. Many companies compile the notices into pre-printed posters that employers commonly use to satisfy their posting obligations.

Electronic Notice Posting Amendment

In recent years, it has become increasingly common for employers to provide employees with policies and mandatory notices through electronic means. This trend has occurred primarily for practical rather than legal reasons.

Governor Kathy Hochul signed an amendment to Labor Law Section 201 on December 16, 2022. The amendment took effect immediately. It introduces the following new obligations for employers:

Digital versions of such copies and abstracts shall also be made available through the employer’s website or by email.

The amendment doesn’t address the possibility that an employer may not have a website or email addresses for its employees. It is possible that the law now requires all employers to either create a website or ensure the ability to communicate by email with all employees.

Employers shall provide notice that documents required for physical posting are also available electronically.

The amendment not only requires employers to provide the postings electronically but also to tell employees they are available electronically. This requirement seems redundant if the employer is already emailing the notices to all employees. It makes more sense when the employers choose to add the postings to a website. In that case, apparently, management must also somehow communicate to all employees that the postings are available electronically.

All other documents required to be physically posted at a worksite pursuant to state or federal law or regulation shall also be made electronically available in the manner described pursuant to this section.

With this language, the amendment purports to mandate electronic notice posting even under federal laws. For example, certain EEOC and U.S. Department of Labor rights notices apparently now must be provided electronically as well.

Technically, this provision doesn’t only encompass basic rights notices under labor and employment laws. Instead, it indicates coverage for other documents legally “required to be physically posted at a worksite.”

Employers Must Act

Very few organizations already provide all potentially subject documents to employees electronically, either through email or their websites. Thus, most New York employers will need to act promptly to comply with the new electronic notice posting. Note that distributing these notices electronically does not satisfy the pre-existing physical posting requirement.

Failure to satisfy the electronic notice posting requirement could result in monetary fines. In addition, non-compliance could be used as evidence against an employer in connection with allegations of other workplace violations.

 

2023 Paid Family Leave

2023 Paid Family Leave in New York

The New York Paid Family Leave (PFL) Program provides partial pay for employees who take time off due to covered family situations. In 2023, paid family leave benefits are improving for employees, and their contributions are decreasing. In addition to higher wage replacement, employees will now be able to use PFL to care for siblings along with other previously eligible family members.

Qualifying Circumstances

PFL provides up to 12 weeks of job-protected time off to:

  • Bond with a newborn, an adopted child, or a child in foster care;
  • Care for a family member with a serious health condition; or
  • Assist with family situations when a spouse, domestic partner, child, or parent is deployed on active military duty.

PFL is also specifically available in some situations when an employee or their minor dependent child is under an order of quarantine or isolation due to COVID-19.

Covered Family Members

Before 2023, family care leave covered caring for a spouse, domestic partner, child, parent, parent-in-law, grandparent, or grandchild with a serious health condition.  Effective January 1, 2023, the law expands this coverage to include biological siblings, adopted siblings, step-siblings, and half-siblings.

Employee Contributions

Even though benefits are expanding to cover more family members this year, the employee contribution rate for PFL is decreasing. For 2023, employees will contribute 0.455% of their gross wages per pay period. The maximum annual contribution for 2023 is $399.43, which is $24.28 less than in 2022.

2023 Paid Family Leave Benefits

Despite the lower employee contribution, the maximum weekly benefit for employees taking PFL will increase in 2023. Eligible employees receive 67% of their average weekly wage up to a cap of 67% of the New York State Average Weekly Wage (AWW). The 2023 AWW is $1,688.19, making the maximum weekly benefit $1,131.08, which is $62.72 more than the maximum weekly benefit for 2022.

Gender X

In addition to reflecting the above changes, all PFL request forms have been updated to include a “Gender X” option to accommodate those identifying as gender neutral or gender other and have removed gender pronouns.

The updated forms are available at the links below:

Preparing for 2023

Companies should confirm their 2023 paid family leave premiums with their insurance carriers. Then ensure next year’s payroll includes the correct contribution rates.

Most employers will need to revise their paid family leave policies to include siblings among the list of qualifying family members. If your policy reflected specific rates for paid family leave in 2022 (or earlier), you should update that component too.

 

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