On Sept. 14, 2023, Gov. Kathy Hochul signed three pieces of legislation into law, all of which are reflective of Gov. Hochul’s ongoing efforts to strengthen workers’ rights in New York State.

Written Notice of Unemployment Benefits

Bill (S. 4878-A/A. 398-A) amends Section 590 of the Labor Law. Under this new legislation, employers must provide written notice of eligibility for unemployment benefits to any employee who has been terminated, temporarily separated, experienced a reduction in hours or any other interruption of continued employment that results in total or partial unemployment. This information must be disclosed on a form furnished or approved by the Department of Labor (DOL).

The new law will take effect on Nov. 13, 2023.

Personal Account Information Disclosure

Beginning March 12, 2024, employers are prohibited from requesting, requiring or coercing an employee or job applicant to: (i) disclose a username and password or other login information in order to access a personal account through an electronic communication device; (ii) access a personal account in the employer’s presence; or (iii) reproduce information contained within a personal account through unlawful measures. This new legislation, which amends the Labor Law to add section 201-i, prohibits an employer from discharging or disciplining an employee or refusing to hire an applicant for failure to disclose such information.

This law is also subject to certain exceptions and limitations. For example, an employer may require disclosure of personal information in order to access nonpersonal accounts that allow access to the employer’s internal computer or information systems. Employers may also view, access and rely on information obtained through the public domain. The law also allows an employer to obtain login information for accounts provided by the employer where the account is used for business purposes and the employee was provided prior notice of the employer’s right to inquire about such information.

An employer is also permitted to access an electronic communications device which is paid for in whole or in part by the employer where the provision of or payment for such device was conditioned on the employer’s right to access. However, the employee must have been provided with prior notice of the condition and explicitly agreed to it. Nevertheless, the employer is still prohibited from accessing any personal accounts on the device.

This law excludes law enforcement agencies, fire departments and departments of corrections and community supervision.

DOL Notices to Unemployment Applicants

Under this new legislation, the DOL is now required to provide notice to unemployment applicants of the supplemental nutrition assistance program (SNAP) and the special supplemental nutrition program for women, infants and children (WIC). This new law takes effect Jan. 12, 2024.

If you have any questions about the information presented in this memo, please contact Kali Schreiner, any attorney in Bond’s labor and employment practice or the attorney at Bond with whom you are regularly in contact.

On Dec. 22, 2020, New York State Technology Law Section 106-b took effect, which prohibited all school districts, including public, private and charter schools, from using any biometric technology (including but not limited to fingerprint or facial recognition) for any purpose other than: 1) as required by the Education Law, or 2) to identify employees who have consented, individually or through their union, to such use. Such prohibition against the use of such biometric technology was to remain in effect until at least July 1, 2022 and until the Commissioner of Education authorized the purchase and utilization of such technology in schools.

Read More >> Update on the Commissioner of Education’s Determination of the Use of Biometric Technology in Schools

On Sept. 15, 2023, the New York City Department of Consumer and Worker Protection adopted several amendments to the City’s Earned Safe and Sick Time Act (ESSTA). Notably, some of the key amendments include changes to 1) what constitutes an “employee” under the ESSTA; 2) how to calculate an employer’s size to meet safe/sick time requirements; 3) when it is permissible to request documentation from employees for safe and sick leave; 4) information on requirements for employees to notify their employer for use of leave; 5) calculating an employee’s rate of pay; and 6) updates that should be made to an employer’s ESSTA workplace policy. These amendments take effect on Oct. 15, 2023. A brief summary of some of the notable changes are detailed below.

Read More >> Recent Amendments to New York City’s Earned Safe and Sick Time Act

On October 4, 2023, the COVID-19 vaccine mandate for health care workers in New York will officially be repealed. On September 18, 2023, the New York State Department of Health (NYSDOH) submitted a Notice of Adoption to repeal 10 N.Y.C.R.R. 2.61 (the Regulation), which was the emergency regulation requiring covered health care employers to ensure that their personnel were fully vaccinated against COVID-19.  

Read More >> New York State Officially Repeals the COVID-19 Vaccine Mandate for Health Care Workers

New York State's pay transparency law becomes effective on Sept. 17, 2023. Labor Law § 194-b requires employers to disclose salary and wage ranges for advertised jobs and promotions. 

The law applies to employers with four or more employees and covers jobs that will be physically performed, at least in part, in New York State, as well as remote-work positions that report to a supervisor in New York.

Read More >> Reminder: Pay Transparency Law Takes Effect Sept. 17, 2023

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.

Read More >> U.S. Department of Labor Proposes to Increase the Salary Level to Qualify for the White Collar Exemptions

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.

Read More >> EEO-1 Filing Opens on Oct. 31, 2023

The National Labor Relations Board (NLRB) continues to drastically change the law and tilt the playing field against employers and in favor of labor unions. Last week, the Biden NLRB issued new rules governing the unionization process that mark a return to the “quickie elections” from the Obama era. This week the NLRB issued a landmark decision in Cemex Construction Materials Pacific (372 NLRB No. 130) that seriously undermines both employer and employee rights by disfavoring secret ballot elections.

Read More >> NLRB Further Erodes Employer Rights and Promotes Unionization

On Aug. 25, 2023, the National Labor Relations Board (NLRB) published a final rule regarding election proceedings. In issuing the rule, the NLRB reinstated election procedures it issued in 2014. These procedures shorten the union election and certification processes and reinstate what have been termed “ambush” elections. In 2019 the NLRB issued a rule replacing many of the provisions of the 2014 rule, but several of the provisions of the 2019 rule were invalidated in AFL-CIO v. NLRB, 57 F.4th 1023 (D.C. Cir. 2023). The NLRB’s latest rule rescinded additional provisions of the 2019 rule. Specifically, the NLRB’s new rule implements the following:

Read More >> NLRB Restores Expedited Union Election Procedures

Can a New York employer be held liable for economic losses suffered by a party that has no business relationship with the employer based on an employee’s unauthorized fraudulent scheming? This issue was recently presented to the New York Court of Appeals. The Court recognized such liability on a claim of negligent supervision and retention notwithstanding a vigorous dissent.

Read More >> NY Employers Face Expanded Liability for Negligent Supervision

On Aug. 16, 2023, Gov. Kathy Hochul signed the Roadway Excavation Quality Assurance Act (the Act), S.4887/A.5608, into law. This new legislation guarantees prevailing wages to construction workers on roadway excavation projects. The law takes effect 13 days after its signing, i.e., Aug. 29, 2023.

Read More >> Governor Hochul Signs Roadway Excavation Quality Assurance Act Into Law

In a recent decision, the U.S. Second Circuit Court of Appeals, the federal appeals court covering New York and adjacent states, sought to clarify the federal law standard for evaluating retaliation claims under the principal anti-discrimination statutes including, Title VII, the ADEA and the Reconstruction Era Civil Rights Act. Significantly, the court found that such retaliation claims are evaluated under a separate, more expansive standard than substantive discrimination (including hostile work environment) claims.

Read More >> Second Circuit Clarifies Federal Law on Employment Retaliation Claims