Reminder to Employers to Promptly Update Your Sexual Harassment Policies and Procedures
The recent spate of sexual harassment revelations is a stark reminder of the importance of employers having all employees, including managers, trained regularly regarding sexual harassment policies and procedures, and maintaining detailed, up-to-date sexual harassment protocols, including clearly-defined reporting mechanisms. Such measures not only foster respectful and safe working environments but, from a legal perspective, protect against, and can aid in the course of, future litigation. Employers should promptly assess and update their sexual harassment policies, and require that all employees participate in harassment training at regular intervals.
Governor Cuomo Introduces New Regulations Aimed at Providing Employees with Greater Schedule Predictability
On November 10, 2017, New York Governor Andrew Cuomo introduced new regulations aimed at providing employees across all industries with greater schedule predictability. Pursuant to the new regulations, employers would be required to provide hourly employees with 14 days' advance notice before a scheduled shift. In the event of a failure to provide such notice, the employer would be required to provide the employee with an extra two (2) hours of pay at minimum wage. Further, if an employee is asked to work an on-call shift, or if an employee's shift is cancelled within 72 hours of the shift start time, the employer would be required to compensate the employee for at least four (4) hours of pay at minimum wage, in addition to any time actually worked during the on-call shift. After a 45-day comment period, the new regulations could go into effect as soon as January 2018. In addition to updating employee-scheduling policies and procedures to comply with these forthcoming regulations, employers should take this opportunity to conduct year-end policy reviews to ensure compliance in the new year.
NYC Earned Sick Time Act Expands to Include Requirement that Employers Provide Paid Leave for "Safe Time"
On October 17, 2017, the New York City Council passed a bill adding to the New York City Earned Sick Time Act (the "Act") a requirement that employers provide paid leave for "safe time." "Safe time" is defined to include time off where an employee – or a covered family member of an employee – was the victim of a sexual offense, family offense matter, stalking, or human trafficking. For example, pursuant to the amendments, an employee may take paid time off to visit a domestic violence or crisis center, to participate in safety planning, to file a report with the police, or to meet with an attorney in connection with a matter of safety. As a reminder, pursuant to the Act, employers with five or more employees must generally provide employees with 1 hour of paid leave for every 30 hours worked, up to a maximum of 40 hours per year, subject to certain conditions. The new "safe time" amendments now expand the reasons for which employees may use such paid leave.
NYC Council Proposes Legislation to Limit Employers' Ability to Enter into Non-Compete Agreements
The New York City Council recently proposed legislation that would substantially limit employers' ability to enter into non-competition agreements. Specifically, under the proposal, New York City employers would be prohibited from entering into non-competition agreements with so-called "low-wage employees," defined as non-exempt employees other than manual workers, railroad workers or commissioned salespersons. As New York State recently increased – and will continue to increase – the salary thresholds for certain categories of would-be exempt employees, New York City's proposed non-competition legislation could prevent employers from entering into non-competition agreements with a rapidly expanding pool of employees. While the proposed legislation has not yet been signed into law, it serves as a stark reminder of the scrutiny with which restrictive covenants, including non-competition agreements, are viewed, and the accordant importance of carefully drafting such contracts.
The Importance of Having Carefully-Drafted Arbitration Agreements
Arbitration agreements that require employees to arbitrate employment-related disputes rather than filing lawsuits can be effective and efficient means of dispute resolution. That said, the enforceability of such agreements – or certain aspects of such agreements – can vary from state to state, and even among jurisdictions within a given state. Consistent with this landscape, a New York state appeals court recently ruled that arbitration agreements that prohibit claims from being brought as class or collective actions violate the National Labor Relations Act. While this decision is already being appealed, and its impact is geographically limited, it serves as a useful reminder of the importance of having carefully-drafted arbitration agreements that comply with the laws of the jurisdictions in which you conduct business.
U.S. Department of Labor Announces it Will Drop Defense of Proposed Weekly Salary Threshold
In November 2016, a Texas federal court issued a nationwide injunction blocking the implementation of the U.S. Department of Labor's revised overtime regulations under the Fair Labor Standards Act. As discussed in previous alerts, these regulations would have raised from $455 to $913 the weekly salary threshold required to consider whether an employee may fall within one of the FLSA's "white collar" exemptions. While the DOL subsequently appealed the Court's injunction, the DOL recently announced that it was dropping, and would no longer pursue, its defense of the proposed $913 weekly salary threshold, and would instead solicit employer input regarding an appropriate weekly salary threshold. Thus, while the DOL will continue to defend its underlying right to establish a weekly salary threshold for overtime exemption purposes, the $913 threshold is, for the moment, a thing of the past. Importantly, while this may be welcome news to employers, as outlined in previous alerts, employers must not lose sight of weekly salary thresholds that have been established under state laws, some of which may even exceed the DOL's previously-intended $913 threshold.
Mayor Bill de Blasio Signs Bills Aimed at Ensuring Work-Schedule Consistency and Predictability for Workers in the Retail and Fast Food Industries
On May 30, 2017, New York City Mayor Bill de Blasio signed a package of bills aimed at ensuring work-schedule consistency and predictability for workers in the retail and fast food industries. Among other components, the legislative package contains a requirement that fast food employers schedule employees at least two weeks in advance of a shift. Further, if an employer switches an employee's shift within this two-week window, the employer will be required to pay a premium – ranging from $10 to $75 – in consideration for the shift change. The legislative package also prohibits retail establishments with 20 or more employees from scheduling their employees for "on-call" shifts. As these new protections will take effect on November 26, 2017, retail and fast food employers must begin examining their scheduling practices and procedures in order to ensure compliance.
Mayor de Blasio Signs Bill Prohibiting Salary History Inquiries
As discussed in last month's Tip, the New York City Council recently passed a bill prohibiting private employers from inquiring into the salary history of job candidates. As Mayor de Blasio has now signed the bill into law, the salary inquiry prohibition will become effective on October 31, 2017. In order to comply with this new law, employers should take steps including reviewing their employment applications and informing individuals involved in the hiring process of this new prohibition.
New York City Council Passes Law Prohibiting Private Sector Employees from Inquiring about Salary History of Job Candidates
On April 5, 2017, the New York City Council passed a law prohibiting private sector employers from inquiring into the salary history of job candidates. Aimed at combating systemic, gender-based wage disparities, subject to certain exceptions, the new law makes it an "unlawful discriminatory practice" under the New York City Human Rights Law for an employer to make any kind of salary history inquiry either to a job applicant or the applicant's former employer. This includes inquiries regarding benefits and other forms of compensation the applicant may have received from his or her former employer. The law will become effective six months after Mayor de Blasio signs the pending legislation (which he is expected to do). Employers should promptly notify all individuals involved in the hiring process of this forthcoming new law, including the fact that all salary negotiation must be conducted without reliance on information regarding a candidate's salary history. Employment applications may also require updating so as to comply with the law.
New York's Paid Family Leave Program to go into Effect January 1, 2018
New York's Paid Family Leave program will go into effect on January 1, 2018. Accordingly, on February 22, 2017, Governor Andrew Cuomo filed the official regulations that will implement the program and provide critical compliance guidance to employers. Among other items, the regulations make clear that the program will apply to all private employers, regardless of size, and employees will become eligible for paid family leave after working at least 26 consecutive weeks (or 175 days, for part-time employees). At first, employees will be entitled to 8 weeks of paid family leave, paid at the lower of 50% of the employee's average weekly wage or 50% of the state average weekly wage. The leave entitlement will then be increased annually until 2021. The foregoing benefits will be funded by employee contributions, deducted from payroll. Employers must be mindful of updating their leave policies and practices to reflect this forthcoming change.
Employees No Longer Required to Accept Wages Via Direct Deposit
While it is common for employers to issue wage payments via direct deposit, effective March 1, 2017, New York employers can no longer require their employees to accept their wages via direct deposit, and will instead be required to inform employees of all possible methods of wage payment. Further, employers will be required to obtain an employee's written consent to receive his or her wages via direct deposit, while the new regulations prohibit employers from taking any adverse action against employees who decline to accept payment via direct deposit. Employers should promptly assess their wage payment procedures in light of these new regulations.
Potential Bill Restricting New York Employers' Use of Non-Complete Agreements
New York Attorney General Eric Schneiderman has promised to introduce a bill that would restrict New York employers' use of non-compete agreements for certain non-highly-compensated employees. The proposed legislation would (i) ban the use of non-competes for employees who earn less than $900 per week; (ii) require employers to pay additional monetary consideration in exchange for an employee entering into a non-compete agreement; (iii) limit the duration and substantive scope of such agreements; and (iv) create a private right of action for violations of the prospective new law. In anticipation of these potential changes, employers must carefully consider the necessity of requiring certain employees to enter into non-compete agreements, and closely review their current agreements to ensure that they are only as expansive as necessary to protect their lawful interests.