Category: New York

2023 New York Paid Family Leave Update

2023 New York Paid Family Leave Update (Webinar Recap)

On January 26, 2023, I presented a complimentary webinar entitled “2023 New York Paid Family Leave 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:

  • Employer & Employee Coverage
  • Contributions & Benefit Rates
  • Qualifying Circumstances
  • Program Updates & Amendments
  • Interaction with Other Leaves

and much more!

The New York Paid Family Leave Program took effect January 1, 2018. Five years later, PFL continues to evolve each year, For example, employee contributions and benefit rates change annually. There have also been statutory amendments to the law since it launched. This webinar recaps the fundamental aspects of PFL, identifies the key updates, and discusses compliance issues and strategies.

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 Paid Family Leave Update”

Virtually all private employers with at least one employee in New York State must be familiar with New York’s Paid Family Leave Program. Especially post-pandemic, this includes out-of-state employers with employees working remotely in the State of New York.

From describing the necessary insurance coverage and related administrative issues to contemplating the interaction between PFL, the FMLA, and other forms of employee leave, this webinar provides a broad overview of the New York Paid Family Leave program in 2023.

Whether you don’t know whether your company has all its bases covered or are looking for nuanced guidance on applying PFL in your workplace, this webinar will help further orient you. Materials include statistical charts on how the costs and benefits of PFL have changed over the past five years and other information that will help you answer questions from other members of management and employees alike.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Law email newsletter to be among the first to know when registration is open for upcoming programs! And follow us on LinkedIn for even more frequent updates on important employment law issues.

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.

 

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

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.