New York Employment Legislation Watch

In 2019, the New York State Legislature made substantial changes to workplace laws. It seems likely that this trend will continue. Let’s take a first look at some proposed employment legislation still pending for possible adoption in 2020.

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

Proposed Bills

These bills have been introduced in the 2020 Legislative Session. Some have been introduced in the past, but did not become law. That is not a clear indication of whether the bill or similar initiative won’t be successful this year. 2019 brought about many changes in New York employment law that would not have become law in prior sessions.

S04883 – “Paid Sick Leave Act”

This bill would require all employers in New York State to provide paid sick leave for their employees.

Sick leave would accrue at the rate of one hour of leave for every 20 hours worked up to a maximum of 80 hours. For small businesses with less than 10 employees, however, the maximum accrual would be limited to 40 hours.

The bill provides that employee must be able to use the paid sick leave:

when the employee is ill or injured;
for the purpose of the employee’s receiving medical care, treatment, or diagnosis; and
to aid or care for certain family members when they are ill or injured, receiving medical care, treatment, or diagnosis.

Covered family members include children, parents, legal guardians/wards; siblings; grandparents; grandchildren; and spouses or another “designated person” if the employee has no spouse.

Employers could choose to provide more paid sick leave than the law would require.

In many ways, this bill is unfathomably broad. But it would not be shocking if New York enacted a more restrained paid sick leave law this year.

A07466 / S02261 – Abusive Work Environment

This bill 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. Still, it wouldn’t be a shocking development for New York in 2020.

The Sponsor’s Memo says, “This legislation will provide legal redress for employees who have been harmed, psychologically, physically, or economically. It will also provide legal incentives for employers to prevent and respond to mistreatment of employees at work.”

On the other hand, it would also provide legal incentives for employers to avoid operating in New York.

A02448 / S01132 – “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 over the past two years. But that effort stalled out of fear that it would have exceeded the Department of Labor’s regulatory authority. However, the State indicated at the time that it might continue the effort through legislation.

The proposed “Schedules That Work Act” would apply to employers with at least 50 employees in New York State. As currently drafted, it would only apply to the retail, food service, and cleaning industries.

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.

The Sponsor’s Memo claims:

“This bill would promote more communication between employee and employer regarding expectations for work and require the employer to give more reasonable notice to the employee of changes in their work schedule. A more predictable schedule would result in a more focused employee who has been ensured their responsibilities outside of work have been taken care of. Additionally, giving hourly employees a voice at work would likely decrease worker turnover rates. In this way, this bill would benefit both the employee and the employer.”

Other similar bills are pending, such as A00315 / S03346.

A04714 / S05044 – 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 employees and former, upon request, a free copy of their personnel file each year; and
Allow former employees (or their attorneys or union representatives) to review and copy the employee’s personnel file.

Several other states already have similar statutory provisions.

The Sponsor’s Memo filed with the bill asserts that:

“In the event of an unscrupulous employer or supervisor taking advantage of their position of power this legislation is very useful in giving the employee the opportunity to defend their name and their work ethic if need be.”

A03863 – Expanded Whistleblower Protection

New York’s Labor Law already provides whistleblower protections for employees who report violations of statutes and government regulations by their employers. This bill would amend the existing law to include reporting of “improper business activities.”

Under the bill, “improper business activities” would include violations of any “internal rule promulgated by the employer pursuant to any statute or ordinance” and “any judicial or administrative decision, ruling or order.”

The amended whistleblower protection would also more broadly apply when the employee “in good faith reasonably believes that an improper business activity has occurred or will occur, based on information that the employee in good faith reasonably believes to be true.”

This amendment would no longer require employees to bring the misconduct in question to the attention of their employer before reporting it to an outside source.

Notably, the bill would also create a new requirement that employers post a notice of these protections in the workplace. It also increases penalties for violations by employers and eliminates employers’ opportunity to recover attorneys fees for claims made without a reasonable basis.

The Sponsor’s Memo contends that:

“Currently, the whistle blower protections afforded under these statutes is [sic] overly narrow in scope, merely protecting employees who are reporting employer misconduct that threatens the general public health and safety. The corporate scandals that rocked the business community in the early part of this decade demonstrate the vital need for broad whistle blower protections. The narrow scope of these statutes deprives them of any true meaning or effect. As a result, this much needed legislation finally offers adequate protection to those brave employees who refuse to sacrifice their own integrity in the face of employer intimidation.”

A similar bill is pending as S03683.

Employer Concerns with Proposed New York Employment Legislation

As already suggested in some places above, New York employers have valid reasons to resist much of this legislation. 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 2020.

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

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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New York Employment Legislation Watch – Early 2020