Category: Employment Law

New York Whistleblower Protections

New York Strengthens Worker Whistleblower Protections

Beginning January 26, 2022, amendments to the New York Labor Law will expand workers’ rights to assert claims of wrongdoing without reprisal. Among the significant changes, New York Labor Law Section 740, which only applies to private entities (not governmental employers), will now provide protections to independent contractors and former employees in addition to current employees. It also expands the covered whistleblower activities and provides new protections beyond adverse employment actions. This law will now broadly prohibit private businesses from retaliating in any manner against covered workers.

Pre-Existing Protections

Before these amendments, Labor Law Section 740 only protected “employees” who had disclosed to a supervisor or public body an unlawful activity, policy, or practice of their employer that creates and presents a substantial danger to the public health or safety” or “health care fraud.”

In addition, courts have applied the law to require proof of an actual violation of law by the employer to afford whistleblower protections.

Read this earlier article for more on New York whistleblower protections generally and before these amendments to Labor Law Section 740,

Areas of Expansion

With the amendments, NY Labor Law Section 740 will cover more workers in more circumstances. There are also additional penalties available in cases of proven retaliation.

Worker Coverage

For purposes of this whistleblower law, the definition of “employee” is defined to include people who are, in fact, not employees. Covered workers will now include “former employees, or natural persons employed as independent contractors to carry out work in furtherance of an employer’s business enterprise who are not themselves employers.”

Protected Activity

Under the amended whistleblower law, covered workers may not be retaliated against for:

  • Disclosing or threatening to disclose to a supervisor or public body an activity, policy, or practice of the employer that the employee reasonably believes is in violation of law, rule, or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.
  • Providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into any such activity, policy, or practice by such employer.
  • Objecting to, or refusing to participate in, any such activity, policy, or practice.

With these expanded protections, workers are now entitled to be free from retaliatory action based on virtually any activity they take based on any employer activity, policy, or practice that the employee reasonably believes is against any law. Neither relation to health or safety nor actual violation is required.

Notice to Employer

Before the amendments, an employee had to bring the objected to activity to their employer’s attention before disclosing it to a public body. As amended, the law only requires employees to make a “good faith effort” to notify the employer in advance. Moreover, no such notice (or effort to provide notice) is required where:

  • There is an imminent and serious danger to the public health or safety;
  • The employee reasonably believes that reporting to the supervisor would result in a destruction of evidence or other concealment of the activity, policy, or practice;
  • Such activity, policy, or practice could reasonably be expected to lead to endangering the welfare of a minor;
  • The employee reasonably believes that reporting to the supervisor would result in physical harm to the employee or any other person; or
  • The employee reasonably believes that the supervisor is already aware of the activity, policy, or practice and will not correct such activity, policy, or practice.

Retaliatory Action

Previously, employers could not take the following action against employees protected by the whistleblower law: “discharge, suspension or demotion . . . or other adverse employment action taken against an employee in the terms and conditions of employment.”

Now, employers are prohibited from engaging in a limitless scope of “retaliatory action,” defined broadly to include any manner of discrimination. Without limitation, the statute specifically includes the following examples:

  • Adverse employment action or threats to take such adverse employment actions against an employee in the terms [or] conditions of employment including but not limited to discharge, suspension, or demotion.
  • Actions or threats to take such actions that would adversely impact a former employee’s current or future employment.
  • Threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member.

Penalties

Labor Law Section 740 permits employees to sue their employers for whistleblower retaliation. As amended, the law will now offer additional remedies for employees to recover and penalties for employers to pay.

Existing remedies included the availability of injunctive relief, orders of reinstatement to employment, compensation for lost pay and benefits, and payment of the employees’ attorneys’ fees and costs. The amendments provide for a new civil penalty of up to $10,000 and the payment of punitive damages for “willful, malicious or wanton” violations.

The amendments also expand the statute of limitations for whistleblower actions under this law from one to two years.

Notice by Employer

The amendments also impose a new affirmative obligation on all employers to inform their employees of the protections and rights afforded by Labor Law Section 740. Employers must do this by posting a notice “conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”

Recognize that this may create a posting requirement for individuals and/or entities who do not qualify as an “employer” for any other purpose. Anyone (other than a governmental entity or agent thereof acting in that capacity) who uses the services of an independent contractor (who is not him/herself an employer) for a business purpose would seemingly qualify as an employer under this law and be obligated to make such posting.

While it’s likely the New York State Department of Labor will publish a model notice for this purpose, it does not appear to have done so at the time of publication of this article.

What “Employers” Should Do?

Other than satisfying the new notice posting requirement, there may be relatively little that employers must affirmatively do. But that doesn’t mean you should ignore these very significant amendments.

Most fundamentally, the amendments primarily require that employers follow the law–that is, all laws. Any legal violation could entitle a worker to protection from retaliation. And given the broad definition of what now constitutes retaliation, it is realistic to expect a substantial expansion of claims alleging whistleblower retaliation.

Otherwise, the expanded retaliation prohibitions do make some previously permissible business activities unlawful. Consequently, employers should carefully consider all actions that may negatively impact any employee who has engaged in any potentially protected whistleblower conduct. Consulting with an experienced employment attorney is advised.

 

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Religious Objections to COVID-19 Vaccine Mandates

Accommodating Religious Objections to COVID-19 Vaccine Mandates

On October 25, 2021, the U.S. Equal Employment Opportunity Commission updated its COVID-19 technical guidance to address employees’ religious objections to vaccine mandates. Title VII of the Civil Rights Act of 1964 protects workers from religious discrimination. The law also grants employees the right to seek accommodations of their sincerely held religious beliefs, practices, and observances. Given the proliferation of legally mandated and voluntarily imposed workplace vaccine mandates, many employees have sought exemption from the requirement on religious grounds. While acknowledging that employers generally must consider employee requests for religious accommodations, the EEOC emphasizes that employees are not automatically entitled to an exemption based on a religion-based objection.

Click for more on “Accommodating Religious Beliefs in the Workplace”

Employee Requests

The new EEOC guidance confirms that an employee must ask for a religious exemption to the vaccine mandate before the employer must consider offering one. Employees do not have to use any “magic words,” such as “religious accommodation” or “Title VII,” but must affirmatively express a conflict between their religious beliefs and being vaccinated for COVID-19.

Support for Religious Objections

The EEOC confirms its historical view that employers should generally assume an employee’s asserted religious belief is valid. But, with a sufficient “objective basis,” an employer may question the religious nature or sincerity of an asserted belief. In that case, the employer may engage in a limited factual inquiry and seek additional supporting information.

Religious Nature

Religious beliefs may be distinguished from purely personal, political, economic, or social views. However, Title VII protects even nontraditional religious beliefs. If there is uncertainty as to why the professed belief is religious in nature, the employee may be asked to explain.

Sincerity

Usually, it is difficult to challenge the sincerity of an employee’s professed religious belief. However, evidence undermining an employee’s credibility can be evaluated. For example, the EEOC notes the following potentially relevant factors:

  • prior acts by the employee inconsistent with the professed belief;
  • whether the accommodation sought is a particularly desirable benefit that is likely to be sought for non-religious reasons;
  • timing of the request (e.g., following an earlier request by the employee for the same benefit for non-religious reasons); and
  • other information suggesting the accommodation is not sought for religious reasons.

The EEOC cautions that an individual’s sincerely held religious beliefs can change over time. And “[a]n employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.”

Undue Hardship

As with disability accommodations, employers need not grant religious accommodations that would pose an undue hardship. Nonetheless, employers are advised to “thoroughly consider all possible reasonable accommodations, including telework and reassignment.” What constitutes an undue hardship will vary between workplaces and potentially even between positions within the same organization.

The EEOC asserts that “[a]n employer cannot rely on speculative hardships when faced with an employee’s religious objection but, rather, should rely on objective information.” The following factors may be relevant in weighing an exception to a COVID-19 vaccination requirement:

  • nature of work location (indoors or outside)
  • type of work setting (solitary or group)
  • degree of interpersonal interaction
  • number of employees seeking a similar accommodation

Individualized Analysis

Employers should evaluate each religious accommodation request on its own merits. Thus, some employees with religious objections may be excused from the vaccine mandate while others are not.

In each case, an employer may consider:

  • type of workplace
  • nature of the employee’s duties
  • number of employees who are fully vaccinated
  • how many employees and nonemployees enter the workplace
  • the number of employees who would need a particular accommodation

An employee’s personal religious beliefs may affect what accommodations are possible for them compared to others.

Alternative Accommodations

Employers are not limited by the specific accommodation an employee seeks. They may consider any reasonable accommodation that would resolve the conflict between the vaccination requirement and the employee’s sincerely held belief without causing an undue hardship. If more than one accommodation meets that standard, then the employer should consider the employee’s preferred accommodation. But the employer retains the right to choose the accommodation granted even if different than the employee’s preference.

The EEOC suggests, “If the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.”

Reconsidering Accommodations

The EEOC notes that the accommodation process is a “continuing obligation that takes into account changing circumstances.” Both employee religious beliefs and workplace conditions could change.

Of particular note, the technical guidance confirms that “an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.”

The EEOC suggests that, as a best practice, employers should discuss any changes (and potential alternatives) with the affected employee before revoking a previously granted accommodation.

Uncertainty Remains Unavoidable

This recent EEOC guidance offers some clarification for employers facing the difficult challenge of responding to employees’ religious objections to vaccine mandates. Unfortunately, however, the emphasis on a case-by-case analysis leaves each situation open to interpretation. As a result, employees who don’t get the accommodations they seek may pursue religious discrimination claims under Title VII or similar state or local laws. A wave of such litigation is likely, no matter how careful employers are in evaluating these requests. Thus, you should review these requests with an experienced employment lawyer before taking final action that may upset an employee.

 

Follow Horton Law on LinkedIn for the latest news and updates on COVID-19 compliance, vaccine mandates, and other topics of interest to New York employers.

2022 New York Minimum Wage

2022 New York Minimum Wage

Do you know the 2022 New York minimum wage? Actually, there are different minimum wages for different parts of the state and different industries. Employers must be ready before the end of the year to meet the new requirements that apply to their employees.

The 2022 New York minimum wage rates are shaded in blue in the tables below. Note that the changes take effect on the last day of the year, not January 1st.

[Follow us on LinkedIn for frequent updates for New York employers.]

Standard New York Minimum Wage

The 2022 New York minimum wage varies by geographic location and sometimes by industry.

For most private employers, the 2022 New York minimum wage in the following chart applies. This chart also applies for non-teaching employees of public school districts or a BOCES. However, there is no New York minimum wage for other employees of public (governmental) employers (but the federal minimum wage of $7.25 does apply).

 

General Minimum Wage Rate Schedule
Location12/31/2012/31/21
NYC – Large Employers (of 11 or more)$15.00$15.00
NYC – Small Employers (10 or less)$15.00$15.00
Long Island & Westchester$14.00$15.00
Remainder of New York State$12.50$13.20

* Annual increases for Upstate New York will continue until the rate reaches a $15 minimum wage. The annual increases will be published by the Commissioner of Labor by October 1. They will be based on percentage increases determined by the Director of the Division of Budget, based on economic indices, including the Consumer Price Index. The report on the December 31, 2021 increase is available here.

Minimum Wage for Tipped Employees in the Hospitality Industry

New York State has separate minimum wage rules for employees in the hospitality industry. These rules apply to businesses running a restaurant or hotel.

The minimum wage rates for most non-tipped employees in the hospitality industry are set as per the schedule above. However, employers may count a portion of certain tipped employees’ gratuities toward the minimum wage requirements. This is known as a “tip credit.”

New York State has two separate cash wage and tip credit schedules for tipped hospitality employees who qualify as “food service workers” and “service employees.”

Food Service Workers

A food service worker is any employee who is primarily engaged in serving food or beverages to guests, patrons, or customers in the hospitality industry who regularly receive tips. This includes wait staff, bartenders, captains, and busing personnel. It does not include delivery workers.

Hospitality Industry Tipped Minimum Wage Rate Schedule (Food Service Workers)
Location12/31/2012/31/21
NYC – Large Employers
(of 11 or more)		$10.00 Cash

$5.00 Tip

$10.00 Cash

$5.00 Tip

NYC – Small Employers
(10 or less)		$10.00 Cash

$5.00 Tip

$10.00 Cash

$5.00 Tip

Long Island & Westchester$9.35 Cash

$4.65 Tip

$10.00 Cash

$5.00 Tip

Remainder of New York State$8.35 Cash

$4.15 Tip

$8.80 Cash

$4.40 Tip

Service Employees

The next schedule applies to other service employees. A service employee is one who is not a food service worker or fast food employee who customarily receives tips above an applicable tip threshold (which also follows schedules, not shown here).

Hospitality Industry Tipped Minimum Wage Rate Schedule (Service Employees)
Location12/31/2012/31/21
NYC – Large Employers
(of 11 or more)		$12.50 Cash

$2.50 Tip

$12.50 Cash

$2.50 Tip

NYC – Small Employers
(10 or less)		$12.50 Cash

$2.50 Tip

$12.50 Cash

$2.50 Tip

Long Island & Westchester$11.65 Cash

$2.35 Tip

$12.50 Cash

$2.50 Tip

Remainder of New York State$10.40 Cash

$2.10 Tip

$11.00 Cash

$2.20 Tip

Fast Food Minimum Wage

Non-exempt employees at some “fast food” restaurants are subject to an alternative minimum wage schedule.

This schedule applies to employees who work in covered fast food restaurants whose job duties include at least one of the following: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning, or routine maintenance.

These special New York minimum wage rates only apply to fast food restaurants that are part of a chain with at least 30 restaurants nationally.

As of July 1, 2021, the minimum wage for fast food workers throughout the state is $15.00 per hour. No further increases are currently scheduled.

Note: No tip credit is available for fast food employees.

Overtime Threshold

Along with increases to the 2022 New York minimum wage, the salary requirement to maintain some overtime exemptions will also increase.

The salary threshold for New York’s executive and administrative exemptions go up on December 31st. These amounts are all higher than the federal Fair Labor Standards Act (FLSA) threshold of $684/week. But most New York employers (other than governmental entities) must satisfy the higher New York threshold to ensure full overtime exemption.

There is no salary requirement for New York’s professional exemption. But employers must also satisfy the FLSA threshold for most professional employees. Doctors, lawyers, and teachers do not have a salary requirement for exemption.

Executive & Administrative Exemption Weekly Salary Threshold Schedule
Location12/31/2012/31/21
NYC – Large Employers (of 11 or more)$1,125.00$1,125.00
NYC – Small Employers (10 or less)$1,125.00$1,125.00
Long Island & Westchester$1,050.00$1,125.00
Remainder of New York State$937.50$990.00

Prepare Now for the 2022 New York Minimum Wage

New York employers should review their compensation levels and make necessary changes by December 31, 2021. Updates might result in increasing an employee’s hourly wage or salary or reclassifying exempt employees to non-exempt if they will no longer meet the exemption salary requirement.

And, remember, the 2022 New York minimum wage rates only last one year in some cases. Companies will have to review this again next year (or sooner).

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