Tag: personnel files

March 29, 2022

New York Employment Discrimination Update (Webinar Recap)

On March 29, 2022, I presented a complimentary webinar entitled “New York Employment Discrimination 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:

Legislative Developments
Agency Procedures
Trends & Statistics
Requirements & Precautions

and much more!

New York Governor Kathy Hochus recently signed new state laws designed to increase employee protections against employment discrimination. This webinar discusses these amendments, plus additional pending legislation. How will the new laws affect employers?

The webinar also addresses recently released data on federal employment discrimination charges filed with the EEOC. Learn about a decline in claims and what it may mean.

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

Why You Should Watch “New York Employment Discrimination Update”

There are specific new provisions that New York employers should become aware of, including a new form of retaliation based on release of employee personnel files. The New York Division of Human Rights must also create a new sexual harassment complaint hotline to assist employees in filing claims. Proposed legislation that may be coming next would require even more dramatic changes to employer practices.

The presentation includes analysis of data from the EEOC for fiscal year 2021. We discuss the operational and filing trends and what they may suggest about the prevalence of employment discrimination and employee motivations to assert claims.

This subject is not going away, and the likelihood of liability for New York employers may be increasing. Thus, we also consider the difference between required preventative measures and options to better protect your organization from employment discrimination.

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.

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.

To receive updates on New York employment legislation developments, sign up for our email newsletter and follow Horton Law on LinkedIn.

February 15, 2020

New York Employment Legislation Watch – Early 2020

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.

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.

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.

To receive updates on New York employment legislation developments, sign up for our email newsletter and follow us on LinkedIn.