For many employers, the end of the year brings many important tasks, deadlines, and legal updates. To assist you with your year-end projects and planning for 2023, this LEGALcurrents provides a summary of some recent developments and reminders as we begin the new year.
New York State Employers Required to Provide Certain Documents Electronically
On December 16, 2022, Governor Kathy Hochul signed an amendment to New York State Labor Law Section 201 that requires employers to provide employee-rights posters and notices electronically through “the employer’s website or email.” In addition to electronically posting notices required by the New York Labor Law, “all other documents required to be physically posted at a worksite pursuant to state or federal law or regulation” must also be available electronically. The law does not address the requirements for employers that do not have websites and/or have employees that do not have access to email.
The amendment does not provide details on penalties for non-compliance, but employers can generally be subject to fines for failure to comply with state or federal posting requirements. Compliance with posting requirements can also be used to defend against any claims that employees were unaware of their rights. The law went into effect on December 16, 2022. We recommend that employers review and update their current practices with regard to employment and labor law notices to ensure compliance with the new electronic posting requirements.
New York State Minimum Wage and Minimum Salary for Certain Exempt Employees to Increase
On December 31, 2022, the following changes to New York minimum wage and salary requirements will take effect:
Minimum Wage Change: New York State’s minimum wage for employees located in Western and Upstate New York (i.e., outside of New York City, Nassau County, Suffolk County, and Westchester County) will increase from $13.20 per hour to $14.20 per hour. The minimum wage for employees located in New York City, Nassau County, Suffolk County, and Westchester County remains unchanged at $15.00 per hour. Under the state’s Hospitality Wage Order, the minimum cash wage for tipped employees in Upstate and Western New York will also increase from $11.00 per hour to $11.85 per hour for “Service” employees (with a maximum tip credit of $2.35) and from $8.80 per hour to $8.45 per hour for “Food Service Worker” employees (with a maximum tip credit of $4.75).
Minimum Salary Change: The minimum required salary for exempt Administrative and Executive employees located in Western and Upstate New York will increase from $990.00 to $1,064.25 per week. The minimum salary for such employees located in New York City, Nassau County, Suffolk County, and Westchester County remains unchanged at $1,125.00 per week. There is no minimum salary requirement for exempt Professional employees in New York, but the federal Fair Labor Standards Act’s minimum of $684 per week still applies.
Action Item: Review employee payroll and make any required increases. Consider how raises may affect wage compression and perceptions of pay inequity among employees.
New York Paid Family Leave Updates for 2023
On January 1, 2023, the following New York Paid Family Leave (PFL) changes will be effective:
Change: The list of covered family members for whom eligible employees can take PFL to care for will expand to include siblings with a serious health condition. This includes biological, adopted, half-siblings, and stepsiblings.
Action Item: Employers should update any lists of covered family members for PFL purposes, including in any PFL policy documents, to include siblings.
Change: The maximum weekly PFL benefit payment will increase from $1,068.36 to $1,131.08. The PFL benefit level continues to be 67% of an employee’s average weekly wage, up to a cap of 67% of the New York State Average Weekly Wage (NYSAWW). This increase in maximum benefit level is due to an increase in the NYSAWW for 2023.
Action Item: Update any policies or other documents that refer to the old maximum benefit level. If self-insured, ensure that you process and administer PFL claims in 2023 using the new maximum benefit level.
Change: PFL is generally paid for through eligible employee contributions made by payroll deductions. For 2023, the employee contribution rate will reduce from 0.511% of gross wages to 0.455% of gross wages, up to a maximum annual employee contribution of $399.43 (down from $423.71).
Action Item: Coordinate implementation of the new contribution rate and deduction level with payroll providers and PFL insurance carriers, and update any employee communications that refer to the PFL contribution rate.
Warehouse Worker Protection Act Signed into Law
On December 21, 2022, Governor Hochul signed the Warehouse Worker Protection Act (“WWPA”) into law. The WWPA (S. 8922/A. 10020) amends the New York Labor Law by creating a new Article 21-A and will take effect on February 19, 2023 (which is 60 days after signing). The WWPA’s purpose is to protect warehouse distribution center workers from certain quota practices. It applies to employers who (1) employ over 100 employees at a single warehouse distribution center or (2) employ over 500 employees at one or more warehouse distribution center within New York State. The WWPA defines an employee as “a nonexempt and non-administrative employee who works at a warehouse distribution center and is subject to a quota.” A quota is considered any work standard where an employee must perform at a specified productivity speed, perform a quantified number of tasks, or handle/produce a quantified amount of material within a certain timeframe. The Commissioner of Labor is tasked with adopting regulations related the WWPA. Employers should keep an eye out for these regulations, which may impact implementation of the law.
Change: Under the WWPA, if an employee is subject to a quota, the employer must provide the employee with a written description of the quota, including “the quantified number of tasks to be performed or materials to be produced or handled, within the defined time period.” The description must also include any potential adverse employment actions for failing to meet the quota. Employees must be notified of quota changes within two days. In addition to the written description requirement, the law also has a protection component. Quotas that prevent compliance with required meal or rest periods, or that interfere with an employee’s ability to use the restroom, are impermissible.
Action Item: Employers covered by the WWPA and who use quota systems should review their quotas for compliance, and ensure they allow for required meal and rest periods, and restroom breaks. Employers should also begin to prepare written descriptions of quotas to provide to employees. Written descriptions must be provided to current employees within 30 days of WWPA’s effective date, and thereafter to new employees upon hire.
Change: The WWPA creates recordkeeping requirements. Quota-using employers must create and maintain the following records:
- individual employee’s personal work speed data;
- aggregate work speed data for similar employees at the same establishment; and
- copies of the written quota descriptions provided to employees.
Records must be available for inspection by the Commission of Labor. Employees also have the right to request their own data, the written description of their quota, and aggregate work speed data for similar employees for the prior six months. This right extends to former employees, who, within three years of separation, can request their own work speed data, their written quota description for the quota they were subject to at time of separation, and aggregate work speed data for similar employees for the six months prior to their separation. Under the law, requests for written descriptions must be met within two business days. Requests for individual and aggregate work speed data must be responded to within seven business days. Records must be provided at no costs to the employee/former employee.
Action Item: Employers should update their recordkeeping practices to meet the above-described requirements, and ensure they are able to provide requested data within the timeframes set forth in the WWPA. Note that records must be keep for the duration of employment, and at least three years following separation from employment.
Lastly, employers should be mindful that the WWPA prohibits retaliation against employees who request records or make complaints about violations of the WWPA. Violations of the WWPA may result in civil penalties by the Commissioner of Labor, or civil or criminal prosecution by the Attorney General.
Updates to the New York State Nursing Employees Law to Take Effect in June 2023
Effective June 7, 2023, the following changes to Section 206-c of the New York Labor Law regarding nursing employees and breastfeeding accommodations will take effect:
Change: An employee must be allowed to express breast milk each time the employee has a reasonable need to do so for up to three years following childbirth. Employers may not terminate, threaten, penalize, or otherwise discriminate or retaliate against an employee who has exercised their rights under this law.
Action Item: Be aware there is no exception to an employer’s obligation to provide either reasonable unpaid break time or paid break time or meal time for the expression of breast milk. Employers should respond promptly to any questions or requests from employees regarding this law.
Change: An employer must designate a room or other location for an employee to express breast milk in the workplace upon a nursing employee’s request, and:
- the room cannot be a restroom or toilet stall;
- the room must be (1) in close proximity to the work area, (2) well lit, (3) shielded from view, and (4) free from intrusion from other people in the workplace or the public;
- the room must have a chair, a working surface, nearby access to clean running water and, if the workplace is supplied with electricity, an electrical outlet;
- the room must be available when needed and may not be used for any other purpose while in use by the nursing employee;
- employers must provide notice to all employees as soon as practicable when a room has been designated for employees to express breast milk; and
- if the workplace has refrigeration, the employer must extend access to refrigeration for the purpose of storing expressed milk.
If complying with the above requirements would cause undue hardship, the employer must still make reasonable efforts to provide a room or other location, other than a restroom or toilet stall, that is in close proximity to the work area, for an employee to express breast milk in privacy.
Action Item: Ensure the designated location in your workplace is compliant with these requirements. If you do not currently have any breastfeeding employees, it may be helpful to plan ahead and determine whether you could provide a compliant space upon request.
Change: The New York State Department of Labor will create a written policy regarding the rights of nursing employees to express breast milk. Employers must provide this policy to each employee upon hire and annually thereafter, and to employees upon returning to work following the birth of a child. The policy must (1) inform employees of their rights under this law, (2) specify how an employee may submit a request for a room to express breast milk, and (3) require the employer to respond to the request in no more than five days.
Action Item: Obtain and distribute the written policy as soon as it is issued by the New York State Department of Labor. You may also need to revise your Employee Handbook to ensure it accurately reflects the changes to this law.
New York State Wage Transparency Law to Take Effect in Fall 2023
Change: Starting in mid-September 2023, all employers with four or more employees in New York State will be required to disclose as part of any job posting, promotion, or transfer opportunity:
- the compensation or “range of compensation” for such position; and
- the job description for such position, if a description exists.
The “range of compensation” is defined as “the minimum and maximum annual salary or hourly range of compensation…that an employer in good faith believes to be accurate at the time of posting.” Recruiting agencies are also required to comply with this disclosure requirement.
If a position is paid purely on commission, the posting must contain a statement confirming that information. The law also contains anti-retaliation protections for employees who exercise their rights under the law. In addition to potential retaliation claims, employers that do not comply with the law may also face civil penalties under the New York State Labor Law.
The law requires the New York State Department of Labor to issue rules and regulations to effectuate the law, so employers should expect to receive additional clarity (but also potentially additional obligations and complications) when those rules and regulations are released over the next few months.
Action Item: This new law is a big deal and will require significant changes for most employers across New York State. A similar obligation already exists for employers in New York City and implementing it has proven to be complicated for many employers. Because the law does not take effect until the fall and the required rules and regulations have not yet been issued (and likely will not be for several months), employers should take some time now to think through the potential implications of this law before taking action. For example, if an employer has never conducted a pay equity analysis or even reviewed pay ranges within various positions, the public posting of current pay ranges may result in some unforeseen surprises, including for current employees who realize that they are being paid significantly more or less than their peers. Given the important and wide-ranging effects of this new law, the HSE Labor and Employment team will be offering training on this topic and discussing as part of a webinar on January 18, 2023.
NLRB Adds Consequential Damages to Remedies for Violations
In a 3-2 ruling on December 13, 2022, the National Labor Relations Board (“NRLB” or “the Board”) ruled to add “consequential damages” as a remedy in all unfair labor practice cases calling for make-whole relief. Now, in addition to traditional remedies such as reinstatement and back pay, the NLRB will consider “all direct or foreseeable pecuniary harms” suffered as a result of an employer’s unfair labor practice. Such consequential damages may include out-of-pocket medical expenses, interest and late fees on credit cards, penalties for early withdrawals from retirement accounts, and other financial costs that the Board finds to be a direct or foreseeable financial consequence of the unlawful conduct.
Evidence of consequential damages will be presented by the General Counsel’s office during compliance proceedings, and employers will have an opportunity to contest the amount of alleged damages and present arguments that the harm was not direct or foreseeable and/or would have occurred regardless of the unlawful conduct. This ruling follows a series of recent NLRB General Counsel Advice Memos pushing for “full panoply of remedies” in settlement of unfair labor practice cases, including compensation for “derivative economic harm,” and calling for “skillfully craft[ed] settlement agreements” to get maximum remedies.
We expect legal challenges to the Board’s statutory authority to implement consequential damages. In the meantime, employers should be aware that the scope of available remedies in unfair labor practices has been significantly expanded and the NLRB will be pushing for maximum damages in their objective to “more fully effectuate the make-whole purposes of the Act.”
NLRB Expands Protesters Access to Private Property
On December 16, 2022, the National Labor Relations Board (NLRB) rejected a 2019 NLRB legal standard that limited the ability of a contractor’s employees to access public nonworking areas of private property used by the contractor to conduct its business. In Bexar County Performing Arts Center Foundation (2022), San Antonio Symphony employees sought to peacefully hand out leaflets to customers at a performance by Ballet San Antonio, objecting to the use of recorded music by Ballet San Antonio instead of live music accompaniment performed by symphony employees. The symphony employees filed a charge against the performing arts center (which owned the property) after the center and the San Antonio police prohibited the symphony employees from distributing the leaflets on the center’s private property, and required the symphony employees to relocate to a public sidewalk across the street.
In its December 16, 2022 decision, the NLRB retroactively applied the standard first articulated in its 2011 decision in the case of New York New York Hotel & Casino, which held that a property owner may lawfully exclude a contractor’s employees from nonworking areas open to the public only where: (1) the property owner can demonstrate that the activity significantly interferes with the owner’s use of the property; or (2) where exclusion is justified by another legitimate business reason, including but not limited to, the need to maintain production and discipline. By returning to this standard, the NLRB effectively grants the employees of a contractor the right to access public nonworking areas of private property where they are regularly employed.
The history of this case illustrates the swinging pendulum of NLRB’s decisions based upon the political party in control. The New York New York Hotel & Casino standard, originally adopted by NLRB members appointed by President Obama, was reversed in 2019 by an NLRB majority appointed by President Trump. In this recent decision, the NLRB majority appointed by President Biden retroactively expanded the rights of contractor employees and restored the New York New York Hotel & Casino standard. Based upon the priorities articulated by the NLRB’s General Counsel, additional changes are likely in the future, including changes related to an employer’s ability to communicate with employees during a union organizing campaign.
Please contact Harter Secrest & Emery’s Labor and Employment attorneys to learn more.