Category: Employment Law

January 31, 2022

New York Employment Law Proposals 2022

We published a similar article in February 2020. The next month, COVID-19 introduced a new world, including for workplace legal issues. Recognizing now more than ever that the unpredictable is the new normal, let’s look back at New York employment law proposals from early 2020 and look ahead at what new laws may be coming in 2022.

Note that none of the bills addressed here have become law at the time of writing. We will continue to track these and other New York employment law proposals for updates.

Update from Pre-COVID Employment Law Proposals

Paid Sick Leave

In February 2020, we highlighted legislation to impose paid sick leave statewide. With COVID-19 as an impetus, paid sick leave passed the legislature in 2020 and took effect on January 1, 2021.

Whistleblower Protections

One of the bills pending in early 2020 sought to increase whistleblower protections for New York workers dramatically. This legislation may have initially taken a backseat to the pandemic, but was ultimately signed into law by Governor Hochul in October 2021.

Proposed Bills – Returning Nominees

We identified proposals similar to the ones below back in 2020. They haven’t become law yet, but remain candidates for having a material impact on New York employment law.

A3632 / S575 – Abusive Work Environment

This bill, repeatedly proposed over the past decade, is an attempt at anti-bullying legislation. It provides that “no employee shall be subjected to an abusive work environment.” Employers would be liable when they or their employees create such conditions in the workplace.

With a broad definition of “abusive work environment,” this bill aims to create protections on top of workplace harassment laws. Essentially, this law would eliminate the requirement that the negative treatment be based on a legally protected personal characteristic. The following could qualify as abusive conduct regardless of the underlying basis:

repeated verbal abuse, such as the use of derogatory remarks, insults, and epithets;
verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature; or
sabotage or undermining of an employee’s work performance.

While none of these behaviors is pleasant or generally desirable, imposing employer liability on these bases would open floodgates of employment litigation. But, it’s at least plausible that New York could pave the way for such legislation.

A02448 / S8108 – “Schedules That Work Act”

New York City already has a local “Fair Workweek Act” that regulates the scheduling of fast food and retail employees. New York State started down the path of imposing similarly-intended regulations a few years ago. But that effort stalled out of fear that it would have exceeded the Department of Labor’s regulatory authority. However, the State indicated that it might continue the effort through legislation.

This legislation would impose new restrictions on covered employers’ ability to schedule employees. It includes specific parameters regarding call-in pay, split shifts, and advance notice of work schedules.

Some aspects of the proposed “Schedules That Work Act” would only apply to the retail, food service, and cleaning industries.

The bill more generally permits employees in any industry working for an employer with at least 50 employees to request changes to their work schedules and related employment details. Upon application, employers would then be required to “engage in a timely, good faith interactive process with the employee that includes a discussion of potential schedule changes that would meet the employee’s needs.”

If enacted as proposed, this bill would constitute a monumental shift in the scheduling dynamic for many New York workplaces.

A8008 / S6502 – Personnel Files

Currently, New York law does not require employers to provide employees access to review their personnel files. This bill would change that.

As proposed, this legislation would require employers to give current and former employees, upon request, a free copy of their personnel file up to 2 times each year.

Several other states already have similar statutory provisions.

Proposed Bills – New Contenders

While some of the bills below may have been introduced in previous legislative sessions, they didn’t jump to the top of our list of likely new laws back in early 2020. But now, they seem viable or otherwise remarkable enough to highlight.

S734 – Non-Competes

Governor Hochul has announced non-compete reform as one of her legislative priorities. Frankly, this bill probably doesn’t go as far as the Governor intends. But it’s still worthy of note as a starting point for potential limitations on the use of non-competes in New York.

This proposal would ostensibly codify non-compete standards currently used by New York courts. As such, it would only permit a non-compete agreement that:

is no greater than required for the protection of the legitimate interest of the employer;
does not impose an undue hardship on the employee;
is not injurious to the public; and
is reasonable in time period and geographic scope.

The law also attempts to render a non-compete unenforceable where an employee loses the job due to a declared state of emergency (e.g., the COVID-19 pandemic).

A6639 / S7434 – Salary Information

This bill would mandate significant changes to the way many employers currently determine salaries and wages. New York law already prohibits employers from asking about their salary history. This legislation would go further and prevent them from even asking employees about their salary expectations.

In addition, employers would have to include the applicable wage scale or salary range in each job posting.

A2142 – Use of Paid Sick Leave

This bill proposes that employees’ paid sick leave “shall not result in a reduction of paid time off for purposes other than sick leave.”

It seems this would prevent employers from combining paid sick leave into a general paid leave bucket, such as “Paid Time Off” or “PTO.”

If this bill were to pass as drafted, it would raise many questions not easily answered by the legislative text. If the concept were to gain traction, the bill would probably be amended or replaced by an alternative proposal. But, any new law with this intent would undoubtedly affect a large number of workplaces, likely requiring most employers to revise their paid leave policies.

A6090 / S6032 – Remote Electronic Monitoring

Obviously influenced by the COVID pandemic, this bill would restrict employers from engaging in electronic monitoring of their employees working at home. Employers could not require employees to install software on personal devices, including smartphones, in an attempt to help confirm whether the employee is actually working.

Under this bill, employers could not even monitor employees on company-provided computers and devices in real-time. However, they could review employee website browser histories.

(Click here for more on a new law already in place that affects electronic monitoring of employees generally.)

A2534 / S6032 – Bereavement Leave

The New York Legislature has been trying to enact some form of bereavement leave over the past couple of sessions. In fact, they nearly succeeded in 2018, but then-Governor Cuomo vetoed the bill.

As with the vetoed legislation, this pending proposal would revise the state’s Paid Family Leave law. It would permit eligible employees to use PFL for bereavement leave. That could mean up to 12 weeks of partially paid leave to grieve the death of a family member.

With a new governor, will this measure finally become law in 2022?

A5047 / S385 – Parenting Leave

This proposal would require employers with 50 or more employees to provide employees up to 16 hours off during any school year to attend school conferences or classroom activities related to the employee’s child that cannot be scheduled during non-work hours. Under the bill, employers are not required to pay employees for this time.

A761 / S640 – Essential Workers Bill of Rights

The COVID pandemic introduced us to “essential workers.” Under this legislation, that group includes, but is not limited to employees of any:

essential health care operations including research and laboratory services; essential infrastructure including utilities, telecommunication, airports and transportation infrastructure; essential manufacturing, including food processing and pharmaceuticals; essential retail including grocery stores and pharmacies; essential services including trash collection, mail, and shipping services; news media; banks and related financial institutions; providers of basic necessities to economically disadvantaged populations; construction; vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public.

During a State disaster emergency, employers of essential workers would have to implement the “bill of rights” outlined in the law. Among the most notable requirements are mandatory hazard pay and “payment of the costs of any child care or health care needed by such essential workers for the duration of the state disaster emergency.”

Especially given the payment provisions, it’s unlikely the bill would take effect in the currently proposed form. But, the general concepts in play presumably have widespread support (as well as intense opposition).

A8823 – Minimum Wage

This bill proposes to increase the minimum wage for employers with annual income of $500 million or more to $20.00 per hour. (As a caveat, the bill further clarifies that any franchise of a company whose income is $500 million or more is also subject to this enhanced minimum wage.)

Currently, New York’s minimum wage varies only by geographic location and (in New York City) workforce size.

A6829 / S5640 – Public Employers

Various aspects of the New York Labor Law currently exclude public employers and their employees from coverage. Several of the bills discussed above would expressly apply to both public and private employers. This bill would go back and subject public workplaces to the existing requirements of the wage payment provisions of the Labor Law. This development would introduce many new obligations and parameters on public entities, including municipalities and school districts, throughout the state.

Employer Concerns with New York Employment Law Proposals

Employers have valid reasons to resist many of these New York employment law proposals. It is unlikely that all of these bills will become law in their current form. However, any of these topics could produce new legal obligations as soon as this year.

You should consider whether any of these measures would unduly burden your business. If so, it’s not too soon to start tracking these New York employment law proposals and seeking to prevent or modify them.

Whether through one of these bills or other measures, employers should expect New York to continue to impose new employee protections this year. It is critical to be aware of any new laws and prepare for compliance as soon as possible.

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December 8, 2021

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.

To stay informed of our latest updates for New York employers, follow Horton Law on LinkedIn.

October 27, 2021

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.