To help prepare employers for the New Year, on January 19, 2023, we presented a webinar regarding some of the latest updates to New York employment laws. The webinar, "New Year, New Updates for New York Employment Laws," covered five topics: (1) New York's pay transparency law—what it says and what we have learned, (2) updates to workplace poster requirements, (3) minimum wage increases for overtime exempt and non-exempt staff, (4) paid vaccination leave updates, and (5) paid family leave updates. In case you missed it, or you just want a refresher, here's a recap of what we discussed during the webinar.
New York's Pay Transparency Law—What It Says and What We Have Learned
New York has joined the wave of states around the country that have passed pay transparency laws, which, generally speaking, require covered employers to disclose or post pay ranges for available jobs. On December 21, 2022, Governor Kathy Hochul signed legislation amending the New York Labor Law and establishing a statewide pay transparency law that is expected to take effect on September 17, 2023 (the NYS Pay Transparency Law or NYS Law). This statewide law adds to the bevy of pay transparency laws already enacted by local legislatures in New York, such as in New York City (the NYC Pay Transparency Law or NYC Law, effective November 1, 2022), Westchester County (effective November 6, 2022), Ithaca (effective September 1, 2022), and, soon, Albany (effective February 12, 2023).
Who is covered by the NYS Pay Transparency Law? The NYS Law applies to all employers with at least four employees, and employment agents and recruiters (each a "covered employer"). Unlike the NYC Pay Transparency Law, the NYS Law does not cover independent contractors. However, like the NYC Law, "temporary help firms" as defined under Section 916 of the New York Labor Law are expressly excluded from compliance.
What does the law require? Under the NYS Law, covered employers must disclose in any advertisement for a job, promotion, or transfer opportunity that can or will be performed in New York the minimum and maximum annual salary or hourly range of compensation the employer in good faith believes to be accurate at the time of the posting. While a reasonably narrow compensation range is reflective of good faith, an excessively broad compensation range could indicate bad faith.
The NYS Law reaches further than the NYC Law in a few notable ways. First, the NYS Law requires that covered employers include a job description with the posting or advertisement, if a job description already exists. The law does not require that employers create a job description for a position in order to advertise for it. Therefore, employers should think strategically about whether a job description is necessary for the job, promotion, or transfer opportunity. Second, the NYS Law imposes a record-keeping requirement—covered employers must keep and maintain records reflecting a history of compensation and job descriptions. Finally, the NYS Law expressly prohibits retaliation against employees by refusing to interview, hire, promote, or employ them for exercising their rights under the NYS Law.
What happens when a covered employer violates the law? Unlike the NYC Law, the NYS Pay Transparency Law does not include a private right of action for aggrieved individuals. However, individuals who believe they have been subject to a violation of the NYS Law can file a complaint with the Labor Commissioner. Covered employers who are found to have violated the NYS Law could be hit with civil penalties of up to $1,000 for a first violation, $2,000 for a second violation, and $3,000 for a third or additional violations. The NYS Law does not provide an opportunity to cure first-time violations before a civil penalty is imposed, which is a safe-harbor provision available to employers under the NYC Law. That said, the potential penalties under the NYC Law are more severe.
For more information on this topic, click here to access additional articles authored by Venable's Labor and Employment Group regarding pay transparency laws.
Workplace Poster Updates
Electronic Posting Requirement. On December 16, 2022, Governor Hochul signed legislation requiring that employers electronically post all workplace posters and other documents that must be physically posted at a worksite under state or federal law, either on the employer's website (i.e., intranet) or by email. Under the law, employers must also provide employees with notice of the electronic postings.
The electronic posting requirement took effect immediately. Employers are also still required to continue posting physical copies of all required posters and other documents in conspicuous locations on each floor of their workplaces. Failure to comply with the electronic and physical posting requirements could result in monetary fines and penalties, the amounts of which vary based upon the posting or document the employer failed to post.
Veterans' Benefits & Services Poster. As of January 1, 2023, all public and private New York employers with more than 50 full time employees must conspicuously display a Veterans' Benefits & Services Poster. The poster can be downloaded and printed from the New York State Department of Labor website.
Know Your Rights: Workplace Discrimination is Illegal Poster. In late October 2022, the Equal Employment Opportunity Commission (EEOC) replaced its prior Equal Employment Opportunity is the Law Poster with the Know Your Rights: Workplace Discrimination is Illegal Poster.
Minimum Wage and Salary Increases
Employers must be mindful of the 2023 increases in the minimum hourly wage and the minimum salary for overtime exempt employees. The updated minimum hourly wage rates are as follows:
- $15 per hour in New York City, Long Island, and Westchester
- $14.20 in the remainder of New York State
- $15 per hour for fast food workers throughout New York State
The updated minimum salary for overtime exempt employees is as follows:
- $1,125 per week in New York City, Long Island, and Westchester
- $1,064.25 per week in the remainder of New York State
Paid Vaccination Leave Updates
Governor Hochul has signed legislation extending paid COVID-19 vaccination leave under Section 196-c of the New York Labor Law for another year, through the end of 2023. The law requires employers to provide employees a "sufficient period of time, not to exceed four hours" for each COVID-19 vaccination and booster dose. Employees must be paid at their regular rate of pay for their leave time. Importantly, the vaccination leave cannot be charged against any other leave to which the employee is entitled, including paid sick leave or leave provided pursuant to a collective bargaining agreement.
Public and private employers in New York must comply with the paid vaccination leave requirements, and all employees working in New York State are eligible to take such leave. Employers should update their policies and inform their employees responsible for managing employee leave of the law's extension through the end of this year.
Paid Family Leave Updates
As most New York employers already know, New York's Paid Family Leave (PFL) law offers employees 12 weeks of job-protected leave to care for eligible family members. As of January 1, 2023, the definition of eligible family members was expanded to include biological siblings, adopted siblings, and half-siblings, in addition to the previously included spouses, domestic partners, children, stepchildren, parents, parents-in-law, grandparents, and grandchildren. Full-time employees become eligible for PFL after working a regular schedule of at least 20 hours for 26 consecutive weeks, while part-time employees become eligible after performing work for the employer on at least 175 days. Employers will want to update their policies to account for this amendment to the PFL law and inform their employees responsible for managing employee leave about the change.
If you have any questions about compliance with the above laws, please reach out to the authors, Nicholas Reiter or Sandy Schlesinger, or any other member of Venable's Labor and Employment Group.