With the proliferation of remote work options in today’s post-pandemic world, employers’ electronic monitoring of their employees’ daily activities has become more routine. On October 31, the National Labor Relations Board (Board) general counsel (GC) released a new memo cautioning against the potential violations of Section 7 of the National Labor Relations Act (Act) that use of such electronic monitoring may raise by “significantly impairing or negating employees’ ability to engage in protected activity and keep that activity confidential from their employer[.]” The GC announced intent to urge the Board to “zealously enforc[e]” existing Board precedent in this context and protect employees rights “to the greatest extent possible.”

Read More >> NLRB General Counsel Issues Memo on Electronic Monitoring, Artificial Intelligence and Employee’s Section 7 Rights

On Oct. 20, 2022, the Equal Employment Opportunity Commission (EEOC) released an updated poster, titled “Know Your Rights.” This poster replaces the EEOC’s “Equal Employment Opportunity is the Law” poster, and covered employers are now required to replace the prior posters with the new version.

Read More >> EEOC Releases Update to “Know Your Rights” Poster

Overview

In March of 2021, New York passed the Marijuana Regulation and Taxation Act (MRTA), which legalized the recreational use of cannabis for individuals over the age of 21. When passed, the MRTA amended Labor Law § 201-d to protect an employee’s right to use “consumable products,” which now includes cannabis. However, the employee’s right to use cannabis is protected only if the use is (1) outside of work hours; (2) off of the employer’s premises; and (3) without use of the employer’s equipment or other property.

Read More >> Recreational Marijuana Use in the Workplace: An Update

In a September 2021 memorandum, the National Labor Relations Board (NLRB) signaled its intent to exercise the full extent of its power to enforce stricter and more costly penalties for unfair labor practices (ULPs). The change was made evident in June 2022, when the Board issued a consequential damages award in a settlement agreement for the first time ever.

Read More >> National Labor Relations Board Stepping Up Penalties for Unfair Labor Practices

On Oct. 11, 2022, the U.S. DOL of Labor (DOL) released a Notice of Proposed Rulemaking that would revise the analysis for determining independent contractor status under the Fair Labor Standards Act (FLSA). The proposed standard would rescind the current rule that has been in effect since March 8, 2021.

Read More >> DOL Proposes New Rule For Independent Contractor Classification

On Sept. 30, 2022, State Labor Commissioner Roberta Reardon announced that she has accepted the New York Farm Laborers Wage Board’s recommendation to lower the overtime threshold for agricultural workers from 60 hours down to 40 hours. During its Sept. 6, 2022 meeting, the Board voted 2-1 in favor of submitting its report recommending a 10-year phase in schedule for a 40-hour threshold. The overtime threshold will be reduced by four hours every two years beginning on Jan. 1, 2024 until it reaches 40 hours in the year 2032.

Read More >> New York Lowers Overtime Threshold for Agricultural Workers

Late last year, the New York City Council passed Local Law 144, which regulates employers and employment agencies’ use of “automated employment decision tools,” (AEDT), in making employment decisions. This new law is set to take effect on Jan. 1, 2023. In summary, the new law prohibits an employer or employment agency from using automated employment decision tools in making employment decisions unless, prior to using the tool, the following requirements are met: (1) the tool has been subject to a bias audit within the last year; and (2) a summary of the results of the most recent bias audit and distribution data for the tool have been made publicly available on the employer or employment agency’s website. Please see our prior blog post for a more thorough summary of the law.

Read More >> Updates on NYC AI Employment-Decision Tools

New York City’s new Salary Transparency Law will go into effect on Nov. 1, 2022. With this deadline for compliance fast approaching, we wanted to offer an update on the most recent guidance and interpretation to help our clients prepare for implementation of the new law.

Read More >> Reminder: NYC Salary Transparency Law – Effective Nov. 1, 2022

Effective Dec. 31, 2022, the minimum wage in upstate New York (i.e., every part of the state except New York City, Nassau, Suffolk and Westchester counties) will increase from $13.20 to $14.20 per hour. The New York State Department of Labor recently announced this one dollar increase – which is approximately a 7.5% increase.

The minimum wage for employees working in New York City, Nassau, Suffolk and Westchester counties remains unchanged at $15.00 per hour. The minimum wage for fast food employees across the state also remains unchanged at $15.00 per hour. The minimum wage for upstate New York will continue to increase on an annual basis until the statewide minimum wage rate reaches $15.00 per hour regardless of locale. A chart summarizing the minimum wage rates throughout the state is available here.

Employers should keep two important things in mind as they prepare to comply with this forthcoming minimum wage increase. First, the minimum wage increase for goes into effect on Dec. 31, 2022. Therefore, non-exempt employees who work on New Year’s Eve should be paid the increased minimum wage for any hours worked. Second, the applicable minimum wage rate is determined with respect to where the work is performed – not where the employer is located. Thus, an employee working in New York City must be paid at the minimum wage rate applicable to downstate even if his or her employer is headquartered in upstate where the minimum wage has not yet reached $15.00.

An increase to the salary threshold for employees who are classified as exempt under New York’s executive and administrative exemptions has not been finalized for 2023. However, proposed regulatory text issued by the Department of Labor suggests the minimum weekly salary threshold for the executive and administrative exemptions will increase from $990 to $1064.25 per week (inclusive of board, lodging and other allowances and facilities) in upstate New York effective Dec. 31, 2022. Historically, the exempt salary threshold has been 75 times the minimum wage rate; this proposed increase, which will likely be implemented, roughly follows that pattern. There is no proposed increase to the salary threshold for exempt executive and administrative employees working in New York City, Nassau, Suffolk and Westchester counties, so that threshold will remain at $1,125 per week. There is still no state salary threshold to qualify for the professional exemption, so the federal threshold of $684.00 per week remains applicable for the professional exemption. Employees must continue to meet specified duties requirements to qualify for an exemption.

For any questions about this minimum wage increase, please contact Hannah Redmond, any attorney in Bond’s labor and employment practice or the Bond attorney with whom you are regularly in contact.

On July 1, 2022, Gov. Kathy Hochul signed new legislation in response to a U.S. Supreme Court decision striking down a law whereby applicants for permits to “conceal and carry” firearms had to show “good cause” as to why they should be issued such a permit. The new legislation—the Concealed Carry Improvement Act (CCIA)—modifies the requirements for obtaining a concealed carry permit and prohibits the possession of firearms in areas deemed “sensitive” or “restricted.” Restricted areas were defined as private property where the owner or lessee has not given explicit permission for individuals to possess firearms on the property, by posting signage or other means. Thus, under the law, firearms would be prohibited in places of employment except where explicit permission had been given.

Read More >> Decision Issued Restraining Enforcement of Significant Aspects of New Gun Legislation

On Sept. 14, 2022, the New York State Department of Health (NYSDOH) issued updated COVID-19 quarantine and isolation guidance, which effectively replaces the guidance from May 31, 2022. According to the September 14 guidance, the NYSDOH will now follow the Centers for Disease Control and Prevention’s (CDC) guidelines on quarantine and isolation.

Read More >> New York State Adopts the CDC’s COVID-19 Quarantine and Isolation Guidance

On Sept. 6, 2022, the National Labor Relations Board (Board) released a Notice of Proposed Rulemaking that would revise the standard for determining joint-employer status under the National Labor Relations Act (NLRA). The proposed standard would rescind and replace the joint-employer rule that has been in effect since April 27, 2020.

Read More >> NLRB Proposes New Rule That Would Expand the Scope of Joint Employment