Category: New York

May 29, 2024

2024 New York Employment Law Update (Webinar Recap)

On May 29, 2024, I presented a complimentary webinar entitled “2024 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:

FTC Non-Compete Rule
FLSA Overtime Rule
New York Labor Law Amendments
NYS Freelance Isn’t Free Act

and much more!

Especially in New York, employers must remain constantly vigilant for new restrictions on how they treat their employees. Recent actions at the federal level also have potentially significant implications for New York employers. This webinar includes the latest information on new state laws and federal regulations that affect a wide array of New York workplaces.

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

Why You Should Watch “2024 New York Employment Law Update”

Have you been waiting to find out what the FTC’s non-compete ban may mean for your business? Still not entirely sure whether the FLSA overtime rule change will affect you? Struggling (like many) to keep track of the latest requirements imposed on New York employers? (And the Freelance Isn’t Free Act even goes beyond employment to cover many independent contractor relationships.)

This webinar will catch you up on these developments and more. Did you know that all New York employers will soon have to provide paid break time to new mothers to express breastmilk at work? In 2025 there will also be a new paid prenatal leave available for pregnant employees. And, New York has finally gotten around to passing a law preventing employers from requiring applicants and employees to provide access to their social media accounts. Make sure you don’t miss out on the facts and tips related to these legal shifts. Now is the time to come into compliance or stay ahead of upcoming obligations.

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April 29, 2024

New York Expands Employee Pregnancy-Related Rights

New York continues to set trends in expanding employee rights. The state’s 2024-25 budget legislation includes two amendments that grant paid time off for certain employee pregnancy-related conditions. Employees may now take paid breaks to express breastmilk and paid leave for prenatal care. The details of these new entitlements are described below.

Employer Coverage

These new requirements are not limited to employers with a minimum number of employees. The paid break time for nursing mothers applies to all New York employers. However, along with the rest of the New York Paid Sick Leave Law, the paid prenatal personal leave provisions only apply to private (i.e., non-governmental) employers.

Paid Break Time for Breast Milk Expression

Section 206-c of the New York Labor Law previously required employers to provide reasonable unpaid break time for employees to express breast milk at work. The new amendment mandates that employers must provide 30 minutes of paid break time “each time such employee has reasonable need to express breast milk.” Employees may use any existing paid break or meal time for expressing breast milk if they need more than 30 minutes.

This expansion of employee rights is highly unusual in requiring paid break time. Existing break time requirements for meal periods only require unpaid time.

How Much Time?

The law does not further address how often an eligible employee may take the 30-minute paid break. There is no elaboration on when an employee should be considered to have “reasonable need to express breast milk.” The U.S. Department of Health & Human Services Office on Women’s Health indicates that “Women typically pump every 2 to 3 hours or around two to three times per 8-hour work period. Women who work 12-hour shifts may need to pump three to four times to maintain their milk production.” Accordingly, New York law arguably could give some employees two hours (or more) of paid break time each shift.

It is plausible that the Legislature only intended to require 30 minutes of paid break time per day. But that is not clear from the statutory language.

The only additional clarification is that eligibility extends for up to 3 years following childbirth. Presumably, this period would start over whenever the employee gives birth to a new child.

No Discrimination

Another open question is whether an employer may require a nursing mother to extend her work day to account for the break time. There is a risk that such a requirement would be considered discriminatory under existing anti-discrimination laws. Indeed, Labor Law Section 206-c itself provides, “No employer shall discriminate in any way against an employee who chooses to express breast milk in the work place.”

Effective Date

This amendment will take effect on June 19, 2024.

Paid Prenatal Personal Leave

The second major update comes to the New York Paid Sick Leave Law. In addition to existing sick leave obligations, the amendment introduces a separate requirement for “paid prenatal personal leave.” With this amendment, every non-governmental employer in New York will be required to provide an eligible employee with 20 hours of paid prenatal personal leave in any 52-week period.

Covered Leave

This leave is specifically designed for “health care services received by an employee during their pregnancy or related to their pregnancy, including physical examinations, medical procedures, monitoring, testing, and consultations with health care providers concerning the pregnancy.”

Based on the above-quoted language, it appears that only the pregnant employee is entitled to this form of leave. Non-pregnant parents-to-be are not covered.

Administrative Parameters

Employers must allow employees to take paid prenatal personal leave in hourly increments.

The law does not indicate that unused paid prenatal personal leave must carry over from year to year. It does clarify that employers are not obligated to pay out unused paid prenatal personal leave upon separation from employment.

Unlike traditional sick leave, which accrues based on hours worked by default, paid prenatal personal leave is available in full (up to 20 hours) when first needed.

Effective Date

This amendment will take effect on January 1, 2025.

Implications and Benefits for Employee Pregnancy

There are undoubtedly positive motivations behind these new laws designed to help accommodate work-related challenges pregnant employees and new mothers face. However, additional obligations to pay employees for time spent not working create new burdens for employers:

An employee using prenatal personal leave in hourly increments could take time off on up to 20 different days leading up to their pregnancy.
Nursing mothers may be entitled to 1-2 hours (and possibly more) of paid break time every day for up to three years following each birth.

It’s crucial to understand these changes thoroughly and prepare for their implementation. Employers will need to update policies, train human resources teams and supervisors, and take additional measures to ensure compliance.

Make sure you’re using NYS Department of Labor updated nursing mothers policy.

For more employment law updates, sign up for the Horton Management Law email newsletter and follow us on LinkedIn.

March 28, 2024

New York’s Freelance Isn’t Free Act (Amended)

On November 22, 2023, New York Governor Kathy Hochul signed the “Freelance Isn’t Free Act.” She had previously vetoed the same legislation in 2022. The new law will affect most independent contractor relationships, at least requiring written contracts.

The New York Freelance Isn’t Free Act was originally scheduled to apply to contracts entered into on or after May 20, 2024. However, the law was amended on March 1, 2024, with a new effective date of August 28, 2024. Originally placed in the New York Labor Law, the Freelance Isn’t Free Act has been moved to Section 1415 of the General Business Law.

Note: New York City’s Freelance Isn’t Free Act took effect on May 15, 2017. This new state law will expand similar rights and restrictions statewide.

Freelance Workers

The law applies to a broad range of freelancers, such as writers, editors, graphic designers, consultants, and others in the gig economy.

“Freelance worker” is defined to mean:

any natural person or organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for an amount equal to or greater than $800, either by itself or when aggregated with all contracts for services between the same hiring party and freelance worker during the immediately preceding 120 days.

However, the following categories are excluded from coverage:

Sales representatives, as defined in New York Labor Law Section 191-a
Lawyers legally practicing law
Licensed medical professionals
Construction contractors

Hiring Parties

The term “hiring party” is used under the Freelance Isn’t Free Act instead of “employer,” since the law targets independent contractors rather than employees.

“Hiring party” is defined broadly as “any person who retains a freelance worker to provide any service,” except for a government entity. Accordingly, the law does not apply to public employers.

It applies to “freelance workers,” defined as individuals or single-person organizations hired as independent contractors for services worth $800 or more. The law includes a broad range of freelancers, such as writers, editors, graphic designers, consultants, and others in the gig economy.

Freelancer Contract Requirements

The Freelance Isn’t Free Act mandates that contracts between freelance workers and hiring parties be in writing. The hiring party must provide a copy of the contract to the freelancer either physically or electronically.

The contract must contain the following information:

Name and mailing address of both the hiring party and the freelance worker
Itemization of all services to be provided by the freelance worker
Value of the services to be provided
Rate and method of compensation
Date or mechanism of determining when payment will be made
Date by which a freelance worker must submit a list of services rendered to allow the hiring party to process timely payment

The New York Commissioner of Labor must provide model contracts on the Department of Labor’s website.

A freelancer can assert a violation of the Act if the hiring party did not provide a written contract upon request made before the work began. If the freelancer did not request a contract upfront, the hiring party would still be at risk of evidentiary presumptions in the freelancer’s favor if there is no written contract.

Payment

Under the Act, payment must be made either by the date specified in the contract or, if not specified, within 30 days of completing the freelance worker’s services. The law prohibits hiring parties from demanding that freelancers accept less compensation than contracted as a condition of timely payment.

Protections Against Retaliation and Legal Recourse

Hiring parties that pay late, or don’t pay at all, can be penalized with double damages.

Freelancers are also protected from retaliation for exercising their rights under the Act. Hiring parties cannot deny work opportunities or future work as a form of retaliation. Each violation may result in statutory damages equal to the contract value.

Freelancers can bring civil actions for damages, including attorney’s fees and costs. They have up to 6 years to assert nonpayment or retaliation claims.

Administrative penalties of up to $25,000 may be imposed if a hiring party has been found to have engaged in a pattern or practice of violating the Freelance Isn’t Free Act.

In addition to private lawsuits, the NYS Attorney General may pursue legal claims against hiring parties. (The original legislation provided for the Department of Labor to have administrative jurisdiction over violations of the Freelance Isn’t Free Act. However, Governor Hochul objected that this would impose too much of a burden on the DOL’s resources.)

Implications for Employers and Freelancers

The Freelance Isn’t Free Act signals a shift toward more protections for independent contractors in New York, but also places significant new burdens on hiring parties. It emphasizes the importance of clear, written contracts and timely payment practices. However, the restrictive nature of the law could result in unintended consequences, such as companies opting to work with freelancers outside of New York where possible. If your organization uses independent contractors, you should review such arrangements before the new law takes effect.

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