As we previously reported, on Sept. 5, 2024, Governor Kathy Hochul signed into law protections for retail employees statewide, mandating that New York retailers adopt safety measures to address and prevent workplace violence (“Retail Worker Safety Act”). Most provisions of the Retail Worker Safety Act (“RWSA”), making up section 27-e of the New York Labor Law, recently took effect on June 2, 2025, with additional provisions for larger retailers scheduled to go into effect on Jan. 1, 2027.
The RWSA applies to “any person, entity, business, corporation, partnership, limited liability company or an association employing at least ten retail employees.” The “retail employees” must work in a “retail store,” which is defined as “a store that sells commodities at retail and which is not primarily engaged in the sale of food for consumption on the premises.” The term “commodity” is not defined.
The Act requires all applicable New York retailers to develop and implement a workplace violence prevention policy, conduct workplace violence prevention training and provide retail employees with access to silent response buttons. On May 29, 2025, the New York State Department of Labor (“DOL”) released a model workplace violence prevention policy, model workplace violence prevention training and guidance on implementing the new law through answers to common frequently asked questions (“FAQs”).
The Model Retail Workplace Violence Prevention Policy
Labor Law §27-e(2) was enacted to require New York retailers to either adopt the state’s model policy or establish their own policy that meets or exceeds the minimum standards in the model policy. The beginning of the model policy makes clear that covered retail employers are encouraged to tailor the model policy to their own “workplace needs and company voice.” Some of the notable sections of the model policy include the following:
Risk Factors for Workplace Violence. The model policy outlines a non-exhaustive list of workplace conditions that may constitute risk factors for workplace violence. The list includes some general work situations and others that are specific to certain workplaces. The policy instructs employers to include additional factors that may increase the risk of workplace violence at their own worksite if not already listed.
Preventing Workplace Violence. This section highlights the training component of the Act as the required means by which New York retailers are to reduce the risk of workplace violence. The model policy also gives covered retail employers the option to establish and implement an incident reporting system for workplace violence incidents in addition to the workplace violence prevention training, as well as to adopt additional methods to prevent workplace violence that are best suited for their specific worksite.
Retail Workers, Workplace Violence, and the Law. Under this section, the model policy summarizes the applicable federal laws and state statutory provisions concerning violence against retail workers, such as the RWSA, New York State Penal Law and the federal Occupational Safety and Health Act (“OSHA”). The section also includes a statement that there may be applicable local laws that apply to retail workers in the city, county, town or village in which an employer is located. Further, this section notes the required implementation of a silent response button for all retail employers with 500 or more employees across worksites in New York State by Jan. 1, 2027.
Retaliation. The model policy contains specific language prohibiting retaliation against retail employees who engage in any of the law’s protected activities, including but not limited to complaining about or reporting incidents of workplace violence, complaining about or reporting factors or situations that may put workers at risk of workplace violence and testifying or assisting in any legal proceedings or investigations concerning workplace violence. The retaliation section of the model policy also lists examples of adverse actions an employer is prohibited from taking against a retail employee which range from termination to more minor acts, such as “changing an individual’s work assignment to a less desirable location.”
The Model Retail Workplace Violence Prevention Training
The written model retail workplace violence prevention training, which is fourteen pages long, generally aims to “increase employee awareness in the workplace and their ability to respond should a workplace violence incident occur.” Notably, the model training does not include store-specific information. As a result, employers who utilize the state’s written model training must add site specific or company specific information to their training, such as:
A worksite specific list of emergency exits or a floor map with emergency exits clearly marked;
The location where staff should meet in the event of an emergency;
Instruction on the emergency devices (e.g., fire alarms) that are utilized in the workplace, if any, and how they operate;
Instructions on the security related devices utilized in the workplace, (e.g. personal response systems or panic alarms), and how they operate;
Additional store specific or company specific emergency procedures; and
Any history of security problems at their store location and how they should be addressed.
The DOL has also released an interactive model retail workers violence prevention training video that is available for retail employers to use at no cost. Use of the interactive training video is not required by the Act. Employers may choose to develop and use their own interactive training for their employees; however, it must meet all the minimum requirements outlined in the Act.
RWSA Guidance
In addition to the model materials, the DOL published answers to common FAQs providing guidance on the implementation of the RWSA in retail workplaces. As for the Act’s training requirement, the DOL explains that a covered retail employer’s workplace violence prevention training must require an employee to provide input during the training and produce a response to the input they provide to be considered “interactive” under the Act. This can be accomplished in a digital format.
Importantly, the DOL notes that retail employers who have developed their own retail workplace violence prevention policy or training must translate their policy and training template and provide the translations in their employees’ primary languages, if the DOL has provided a translation of their model policy and template in that language.
Employers should note that employees who primarily work on-site at a retail store are also covered by the Act even if they are not employed by the retail store directly and not involved in selling goods at retail (e.g., professional cleaners at retail stores). Moreover, all employees across a retail employer’s locations throughout New York State are covered by the RWSA.
Bond attorneys are available to guide covered employers through the implementation of the RWSA. If you have any questions about the information presented in this memo, please contact James E. McGrath, III,Camisha Parkins, any attorney in Bond’s labor and employment practice, or the attorney at Bond with whom you are regularly in contact.
On Jan. 21, 2025, President Trump issued an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the Order). Among other changes, the Order revokes Executive Order 11246 (EO 11246), which governs federal contractors and subcontractors.
EO 11246, which was signed into law in 1965 by Lyndon B. Johnson, has been enforced by the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP). EO 11246 prohibited federal contractors, subcontractors and federally assisted construction contractors, who did over $10,000 in business with the federal government, from discriminating in employment decisions and required them to take affirmative action to ensure equal opportunity without regard to race, color, religion, sex, sexual orientation, gender identity or national origin. In addition, certain federal contractors who had contracts above a certain monetary threshold were also obligated to implement a written affirmative action program (AAP). Covered federal contractors obligated to maintain written AAPs were required to certify on the OFCCP's online Contractor Portal, on an annual basis, that they developed and were in compliance with the AAP mandates.
The Order not only rescinds EO 11246, but also directs OFCCP to immediately cease:
Promoting “diversity”;
Holding federal contractors and subcontractors responsible for taking “affirmative action”; and
Allowing or encouraging federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion or national origin.
The Order also requires federal agencies to include in every contract or grant award a term requiring the contractor/grantee to “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
Federal contractors must comply with the Order within 90 days. While we are continuing to analyze the implications of the revocation of EO 11246, many questions remain, including the impact on federal contractors currently undergoing an OFCCP audit or compliance review.
The Rehabilitation Act of 1973 (covering individuals with disabilities) and the Vietnam-Era Veterans’ Readjustment Assistance Act of 1974 (covering protected veterans), which are also enforced by OFCCP, prohibit discrimination in employment and require certain federal contractors to develop written affirmative action plans. Those affirmative action obligations for individuals with disabilities and protected veterans, which are not found in EO 11246, do not appear to be impacted by President Trump’s Order and will remain in effect.
On Dec. 3, 2024, the U.S. Department of Labor’s Wage and Hour Division (WHD) released a Notice of Proposed Rulemaking to phase out the issuance of Fair Labor Standards Act (FLSA) Section 14(c) certificates that allow employers to pay employees with disabilities subminimum wages.
The proposed rule would end the issuance of new Section 14(c) certificates and would only allow certificate holders to apply for renewals for three years after the effective date. At the end of the three-year phase out period, all Section 14(c) certificates will expire and all workers that were paid subminimum wages under Section 14(c) certificates will be required to be paid at or above the minimum wage. The WHD has emphasized that this rule will not require workers to leave their places of employment or require current certificate holders to alter any additional services they provide to these employees.
The FLSA created a guaranteed, non-waivable, federal minimum wage which is currently $7.25 per hour “except as otherwise provided.” Pursuant to Section 14(c)(1) of the FLSA, the Secretary of Labor has a limited power to issue certificates that allow employers to pay subminimum wages if it is determined that the certificates are necessary to prevent the curtailment of employment opportunities for individuals with disabilities. The WHD proposed this new rule to phase out the issuance of Section 14(c) certificates because it has determined that this statutory condition is no longer met.
The WHD based this determination on several factors. First, since the FLSA was signed into law in 1938 and since the most recent substantive revisions to Section 14(c) were made in 1989, the WHD noted that there have been significant steps to promote employment opportunities for individuals with disabilities through advances in technology, community advocacy and legislation.
Second, the WHD cited the steady decline in current certificate holders and subminimum wage employees as evidence of a lack of curtailment of employment opportunities for individuals with disabilities. According to data gathered by the WHD, there were 424,000 workers paid subminimum wages under Section 14(c) certificates and 5,612 certificate holders in 2001, compared to 40,579 workers paid subminimum wages and 801 certificate holders in 2024.
Third, the WHD noted that 33 states have already prohibited or further restricted the payment of subminimum wages to individuals with disabilities.
Finally, the WHD cited several studies suggesting misuse of Section 14(c) certificates and indicating that the work done by the employees working under those certificates often lacks opportunities for advancement or does not provide transferable skills. Based on those studies, the WHD concluded that the use of Section 14(c) certificates may have the counterproductive effect of curtailing employment opportunities for individuals with disabilities.
The WHD has invited the public to comment on all aspects of the proposed rule. The public comment period will be open until Jan. 17, 2025.
On April 23, 2024, the U.S. Department of Labor announced its final rule to increase the minimum weekly salary to qualify for the Fair Labor Standards Act white collar exemptions. The final rule is scheduled to be published in the Federal Register on April 26, 2024, and will become effective on July 1, 2024.
The U.S. Department of Labor (DOL), Office of Federal Contract Compliance Programs (OFCCP) announced that its Contractor Portal will open to receive Affirmative Action Program (AAP) certification submissions on April 1, 2024. The deadline for contractors to certify that they are in compliance with their AAP obligations for each establishment and/or functional unit is set for July 1, 2024.
As we previously reported here, on Oct. 11, 2022, the U.S. Department of Labor (DOL) issued a Notice of Proposed Rulemaking that would revise the analysis for determining independent contractor status under the Fair Labor Standards Act (FLSA or Act). On Jan. 9, 2024, the DOL announced its final rule.
On Aug. 30, 2023, the U.S. Department of Labor (USDOL) issued a proposed rule to increase the minimum weekly salary to qualify for the Fair Labor Standards Act white collar exemptions from $684 per week (the annual equivalent of $35,568) to $1,059 per week (the annual equivalent of $55,068). This new proposed salary level is based on the 35th percentile of earnings of full-time salaried workers in the lowest-wage Census Region. When the exempt salary level was last raised to $684 effective Jan. 1, 2020, the USDOL set it at the 20th percentile of earnings of full-time salaried workers in the lowest-wage Census Region.
The U.S. Equal Employment Opportunity Commission (EEOC) announced on Sept. 1, 2023, that its EEO-1 filing platform will open on Oct. 31, 2023. The deadline for employers to file their EEO-1 reports will be Tuesday, Dec. 5, 2023.
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. 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.
In connection with Mental Health Awareness Month, the United States Department of Labor (USDOL) has sought to assist employers in better understanding how to comply with the Family Medical Leave Act (FMLA) as it relates to mental health conditions. Accordingly, on May 25, 2022, the USDOL issued new guidance (Guidance) and frequently asked questions (FAQs) on providing FMLA leave to employees to address their own mental health conditions or to care for a covered family member with a mental health condition.
On March 15, 2022, the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) issued a new directive addressing pay equity audits. The new Directive 2022-01 sets forth what OFCCP views as its apparent authority to obtain access to and review federal contractors’ pay equity audits that are conducted in connection with contractors’ compliance mandates.
