Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
It has never been easy for businesses to keep up with and ensure compliance with New York State’s and New York City’s employment laws, but calendar year 2018 presented a unique amount of new challenges for employers. The most significant change was the sexual harassment prevention laws the state and city passed that require covered employers to roll out mandatory anti-harassment policies and mandatory sexual harassment prevention training. In addition to these laws, various jurisdictions within New York State passed mandatory paid sick leave laws, and New York City passed a law requiring accommodations for lactating employees, “cooperative dialogue” requirements for employees who request certain types of accommodations, and “temporary schedule changes” for certain personal events.
While 2018 certainly presented a host of challenges, we are not projecting much of a slow-down in 2019. Indeed, workplace laws figured prominently in Governor Cuomo’s recent State of the State address and Mayor de Blasio's State of the City address.
Below we highlight several of the major challenges New York State and New York City employers are likely to encounter this coming calendar year.
Minimum Wage Increases
On December 31, 2018, the minimum wage increased based on New York’s unique geographic scale. With respect to non-exempt employees, the minimum hourly wage increased to:
- $15.00 per hour (with an overtime rate of $22.50 per hour) for employers in New York City with 11 or more employees;
- $13.50 per hour (with an overtime rate of $20.25 per hour) for employers in New York City with 10 or fewer employees;
- $12.00 per hour (with an overtime rate of $18.00 per hour) for employers in Long Island and Westchester; and
- $11.10 per hour (with an overtime rate of $16.65 per hour) for employers in the remainder of New York State.
In addition, as of December 31, 2018, New York State raised the minimum salary that employers must pay to employees who qualify for the executive or administrative exemptions. Specifically, the minimum salary increased to:
- $1,125.00 per week ($58,500 annually) for employers in New York City with 11 or more employees;
- $1,012.50 per week ($52,650 annually) for employers in New York City with 10 or fewer employees;
- $900.00 per week ($46,800 annually) for employers in Nassau, Suffolk, and Westchester counties; and
- $832.00 per week ($43,264 annually) for employers in the remainder of New York State.
Employers are encouraged to review their pay practices to ensure that employees are earning the legal minimum wage or weekly salary because penalties for non-compliance with the New York Labor Law could become potentially significant exposure.
New York State Department of Labor is Expected to Finalize Predictable Scheduling Regulations1
On December 7, 2018, the New York Department of Labor (NYDOL) proposed a new set of “predictable scheduling” regulations in an effort to discourage on-call shifts and to require employers to pay employees for newly added shifts and cancelled shifts.2 If the NYDOL adopts these regulations, New York State will become the second state, after Oregon, to have state-wide predictable scheduling laws.
As currently drafted, the proposed regulations require employers to: (i) pay employees for at least four hours anytime an employee reports to work for any shift; (ii) pay employees for at least two hours when an employee reports to work for a shift that had not been scheduled with at least 14 days’ notice; (iii) pay employees for at least two hours when an employer cancels an employee’s shift with 14 days to 72 hours’ notice or for at least four hours when an employer cancels an employee’s shift with less than 72 hours’ notice; (iv) pay employees at least four hours when an employee is scheduled for an on-call shift; and (v) pay employees at least two hours when an employee is required to be in contact with the employer within 72 hours of the start of shift to confirm whether to report to work.
The notice and comment period for these proposed regulations has expired. We are currently awaiting word on whether the state will adopt the proposed regulations as is, whether the NYDOL will amend the proposed regulations, or send the regulations to the scrap heap. These regulations will present a massive shift in most employers’ scheduling practices. We strongly recommend businesses review their scheduling practices to ensure compliance with these new rules.
Governor Cuomo’s Proposed Changes to Increase Criminal Penalties for Wage Theft
Governor Cuomo stated in the 2019 State of the State address that he will seek to “advance legislation to increase criminal penalties for employers who knowingly or intentionally commit wage theft violations to more closely align with other forms of theft.”3 This proposed legislation will “amend the Labor Law to provide criminal penalties for employers who knowingly steal wages with criminal penalties ranging from a Class B misdemeanor for wage theft less than $1,000 to a Class B felony for wage theft greater than $50,000.” Significantly, the proposal “will enhance the Department of Labor’s ability to make referrals for criminal prosecution as District Attorneys and the Attorney General will now have clear, unequivocal crimes to prosecute.”
We will continue to monitor any updates concerning this proposed legislation on increasing criminal penalties for wage theft.
Governor Cuomo’s Proposed Expansion of #MeToo Legislation
Gov. Cuomo has also proposed new legislation that focuses on workplace sexual harassment. This builds off of the state’s and city’s 2018 legislation that put New York on the map as having some of the most expansive sexual harassment prevention requirements in the country.4 Gov. Cuomo now proposes (1) a change to New York State Human Rights Law to lower the legal standard to prove hostile work environment from “severe or pervasive” to a standard more easily reached by employees; (2) the requirement that non-disclosure agreements in contracts specify that “employees may still file a complaint of harassment or discrimination with a state or local agency and testify or participate in a government investigation”; (3) the requirement that all New York employers post a sexual harassment educational poster in their workplace.5
Mayor de Blasio’s Proposed Mandatory Paid Personal Time Law
On January 9, 2019, in his State of the City address, Mayor de Blasio announced his intention to make New York City the first city in the United States to mandate paid personal time for workers. Under this proposed law, private employers with five or more employees would be required to grant their employees 10 annual days of paid personal time, “allowing employees to take paid time off for any purpose, including vacation, religious observances, bereavement and time with family.”6
This proposed legislation is “expected to benefit New Yorkers in a wide range of industries who currently receive no paid personal time, including 180,000 workers in professional services, 90,000 in retail, and 200,000 in the hotel and food service sectors.”7 The New York City government already provides its employees with more than two weeks of paid personal leave per year.
The proposed paid personal time law further states:
- Employees would be able to access the benefit after 120 days of employment.
- Any unused paid personal time could be carried over to the following year for a total maximum of 10 days of paid personal time.
- Employers could require up to two weeks’ notice and have reasonable exceptions for granting leave to prevent too many workers from taking simultaneous leave.
- This benefit would be offered in addition to the five days of safe and sick time under the New York City Earned Safe and Sick Time Act, which became law in 2014.
New York Added Gender Identity and Gender Expression to its Protected Categories8
On January 25, 2019, New York expanded its prohibition against discrimination in employment to include discrimination based on a person’s gender identity or expression. Under the law, “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.
Under the Gender Expression Non-Discrimination Act (GENDA) a New York employer cannot refuse to hire, bar or discharge from employment, or discriminate against an individual in compensation or in the terms, conditions or privileges of employment on the basis of the individual’s gender identity or expression. Previously, these protections existed under New York State law through prohibition of discrimination based on sex, but now New York has codified this principle by creating a separate protected category for gender identity and expression.
While these initiatives have garnered a significant amount of attention, both New York State and New York City are likely to propose additional laws or regulations, especially since a single party has the majority in both legislatures and executive branches. Stay tuned for additional developments.
1 These regulations would amend the Wage Order for Miscellaneous Industries and Occupations which cover most New York State employers. Notably, these changes will not affect employers covered by the Wage Order for the Hospitality Industry which governs restaurants and hotels.
2 See Eli Z. Freedberg and Paul Piccigallo, New York Agency Renews Effort to Promulgate State-Wide Predictable Scheduling, Littler ASAP (Dec. 11, 2018).
3 Governor Cuomo 2019 State of the State Book, p. 103.
4 See Devjani Mishra and Emily Haigh, New York State and City Expand Anti-Harassment Requirements for Employers, Littler Insight (Apr. 13, 2018).
5 Governor Cuomo 2019 State of the State Book, pp. 190-192.
6 Mayor de Blasio Proposes Making City First in Nation to Mandate Paid Personal Time (Jan. 9, 2019), https://www1.nyc.gov/office-of-the-mayor/news/019-19/mayor-de-blasio-proposes-making-city-first-nation-mandate-paid-personal-time#/0.
8 Gender Expression Non-Discrimination Act (S. 1047), available at https://nyassembly.gov/leg/?default_fld=&Text=Y&term=2019&bn=S1047.