Category: Employment Law

2023 NY Employment Law Update Cover Slide

2023 New York Employment Law Update (Webinar Recap)

On March 30, 2023, I presented a complimentary webinar entitled “2023 New York Employment Law 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:

  • Pay Transparency
  • Sexual Harassment
  • Paid Family Leave
  • Pregnancy & Nursing
  • Leave Discrimination

and much more!

New York continues to be one of the most proactive states in regulating the employment relationship. In late 2022, the State enacted several new laws and amendments imposing new restrictions and requirements on employers. Recent developments at the federal level also impact New York employers.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “2023 New York Employment Law Update”

If you are in human resources or management with supervisory responsibility over other employees, you need to remain up-to-date on the latest developments in workplace law. For example, are you aware of new pay transparency requirements, which will even require New York employers to publish job descriptions in job postings? Did you know there are new circumstances where employees can take Paid Family Leave? And, could minimum wage be increasing even higher?

Beyond New York law changes, the federal government is becoming increasingly restrictive on employers. The National Labor Relations Board recently deemed many common severance agreement clauses unlawful. Consequently, documents your company has commonly used in the past could result in unfair labor practice charges, even where employees didn’t sign proposed agreements!

Coming soon, New York employers may need to update their sexual harassment prevention policies, provide additional amenities to nursing mothers, and provide information to warehouse employees about production quotas. Watch our 2023 New York Employment Law Update to find out whether and how these topics affect you.

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Warehouse Worker Protection Act

New York Warehouse Worker Protection Act Amended

The New York Warehouse Worker Protection Act limits employers’ ability to monitor warehouse employees’ productivity using quotas. Covered employers must notify employees in writing of all quotas against which they’re measured and the potential consequences of not meeting them. This new law temporarily took effect on February 19, 2023. As a result of chapter amendments, its implementation will now be delayed until June 19, 2023, with significant changes.

Covered Workplaces

Employers are subject to the Warehouse Worker Protection Act if they employ either:

  • 100 or more employees at a single warehouse distribution center; or
  • 1,000 or more employees at one or more warehouse distribution centers in the State.

“Warehouse distribution center” is defined by reference to applicable North American Industry Classification System (NAICS) codes. Establishments falling under the following NAICS codes are covered:

Employees exempt from New York minimum wage and overtime requirements are not counted in determining coverage. Even if subject to quotas, the provisions of the Warehouse Worker Protection Act don’t apply to them. Drivers and couriers are also excluded from coverage.

“Quotas”

The Warehouse Worker Protection Act defines “quota” as “a work standard” which:

  • an employee is assigned or required to perform: at a specified productivity speed; or a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined time period; or under which the employee may suffer an adverse employment action if they fail to complete the performance standard; or
  • an employee’s actions are categorized between time performing tasks and not performing tasks, and the employee’s failure to complete a task performance standard or recommendation may have an adverse impact on the employee’s continued employment or the conditions of such employment.

Notice of Quotas

By July 19, 2023 (or, if later, upon hire), covered employers must provide each employee a written description of each quota to which the employee is subject. The description must include:

  • quantified number of tasks to be performed or materials to be produced or handled,
  • specified time period, and
  • any potential adverse employment actions that could result from failure to meet the quota.

If the employer changes any quota, it must provide an updated written description of each quota within two business days of the change.

The written description must be provided in English and the employee’s primary language.

Whenever an employer disciplines an employee for not meeting a quota, it must provide the employee with the applicable quota.

Additional Provisions

The Warehouse Worker Protection Act includes additional parameters related to employee quotas. These restrictions generally prohibit employers from implementing quotas that prevent compliance with meal or rest periods or bathroom use, including reasonable travel time to and from bathroom facilities.

Current employees have the right to request a copy of the written description of their quotas. If a current or former employee believes they have been disciplined for failing to meet a quota or that meeting a quota caused a violation of their right to a meal, rest period, or use of the bathroom, they have the right to request and receive all of the following:

  • written descriptions of each quota to which the employee is subject;
  • the most recent 90 days of the employee’s own work speed data; and
  • the aggregate work speed data for similar employees at the same establishment for the same time period.

Employers must also maintain quota records for three years sufficient to ensure compliance with requests for data.

Companies must provide the requested information “as soon as practicable, but no later than fourteen calendar days from the date of the request.” They may not retaliate against employees for requesting quota information or making a complaint alleging a violation of the Act.

Note that the Warehouse Worker Protection Act confirms that it does not require any employer to use quotas or to create/preserve data if it doesn’t monitor employee performance based on quotas.

Warehouse Employer Action Required

The Warehouse Worker Protection Act could apply to employers across numerous industries, including transportation, logistics, and a broad array of wholesale businesses. If your warehouse operations are large enough to qualify, you must plan to either provide the requisite quota information to employees or decide not to apply productivity quotas. Warehouses that continue to use quotas must be particularly careful to identify all possible consequences to an employee who doesn’t meet their quota and include them in the required written description. Not listing a form of discipline may prevent the employer from implementing it later.

 

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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.