On Nov. 21, 2022 New York Governor Kathy Hochul signed a Bill A8092-B/S1958 into law that expands retaliatory workplace protections for employees. The newly signed law amends New York Labor Law (NYLL) Section 215 to prohibit an employer from punishing or disciplining an employee who takes time off work for a “lawful absence” protected by federal, state or local law.
On Nov. 2, 2022, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking seeking to strengthen protections for unions in the election process. Among other things, the proposal would alter the rules instituted by the Trump Board in 2020 that made it easier for employees to decertify incumbent unions. The proposed changes are purportedly intended to protect workers’ ability to make free choices regarding union representation and to encourage collective bargaining.
Changes are on the horizon for Albany County after the county Legislature passed several laws in October, including legislation meant to provide greater salary transparency for job seekers. Local Law “E,” sponsored by Albany Democrat Carolyn McLaughlin, requires county employers to post the minimum and maximum salary range when advertising an open position, promotion or transfer. Adopted on Oct. 11, 2022, this law amends Local Law No. 1 for 2013, “An Omnibus Human Rights Law for Albany County” and is set to go into effect 90 days after being signed by the Albany County executive.
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.”
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.
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.
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.
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.
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.
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 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.
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.
