Applies to: As Indicated
Effective: As Indicated
Quick Look
- Text The New York Department of Labor issued proposed regulations for the already implemented pay transparency laws.
- Employers are prohibited from requiring employees to attend or punishing employees who refuse to attend anti-union captive audience meetings.
- Employers must provide employees with a written notice of employees’ right to file for unemployment benefits after separation or reduction in hours resulting in unemployment.
- Employers are prohibited from asking employees or job applicants to disclose usernames, passwords or any other means of accessing social media, email or other electronic personal accounts as a condition of hiring or continued employment or for use in disciplinary actions.
- The weekly salary threshold exemption for direct deposit consent requirements and pay frequency requirements for executive, administrative and professional employees is increased from $900 to $1,300.
- Employers who fail to pay wages at the minimum wage rate, overtime rate, or promised wage rate are now potentially committing criminal larceny defined by Section 155 of the New York Penal Law.
- Employers do not have rights to employee inventions created on the employee’s own time and independently from employer resources or trade secrets.
- Interns are now explicitly protected from discrimination based on gender identity and gender expression.
Discussion
Text As we head into the last quarter of the year, New York continues to add to its growing list of laws enacted during this year’s legislative session. Looking at last year for clues, additional bills should also be signed in December. In addition, the New York Department of Labor (NYDOL) issued the proposed regulations for the already implemented pay transparency laws. For now, here’s the latest roundup.
Proposed Pay Transparency Regulations. New York’s pay transparency law went into effect on September 17, 2023, and the NYDOL issued proposed regulations to clarify the requirements. Public comments are being accepted until November 13, 2023. The most significant clarifications are for the applicability to remote work and the definition of a “range of compensation.” The proposed rules state that jobs physically performed outside New York include remote roles. Incidental or infrequent presence in New York, including an occasional meeting or conference, is not enough for a position to be considered at least partly performed in New York.
Most significantly, the proposed regulations clarify pay range requirements. A pay range cannot be open-ended like stating “up to $50,000 per year.” There must be a minimum and a maximum amount. It must be specific to a single opportunity and single geographic location or region. Tips, bonuses or other forms of compensation and benefits beyond standard base pay may be indicated but not factored into the calculation of the pay range. Lastly, the pay range must represent the employer’s good-faith estimate at the time of posting, which may be informed by factors including the job market, the employer’s hiring budget, current employee compensation levels, and experience and education levels appropriate for the role.
Captive Audience Meeting Ban. Effective September 4, 2023, SB 4982 prohibits employers from requiring employees to attend or punishing employees who refuse to attend anti-union captive audience meetings. The bill specifically prohibits discharge, refusing to hire, or otherwise discriminating against an individual for refusing to attend a meeting, listen to a speech or view communication whose primary purpose is to convey the employer’s opinions on religious or political matters, including a decision to join or support a labor union. Employers are also required to post a notice of rights under the law.
Employers are not prohibited from: 1) communicating information that the employer is legally required to communicate; 2) communicating information that is necessary for employees to perform their job duties; 3) meeting with or participating in any communications with its employees that are part of coursework, any symposia or an academic program if the employer is an institution of higher education; 4) casual conversations between employees or between an employee and employer or employer’s representative, provided participation is not required; or 5) a requirement that is limited to supervisory and managerial employees.
Written Notice of Unemployment Benefits. Effective November 13, 2023, S4878A/A398A requires employers to provide employees a written notice of their right to file for unemployment benefits after separation or reduction in hours resulting in unemployment. The notice must be in writing and include the employer’s name and registration number and address.
Protection of Personal Electronic Accounts. Effective March 12, 2024, S2518A/A836 prohibits employers from asking employees or job applicants to disclose usernames, passwords or any other means of accessing social media, email or other electronic personal accounts as a condition of hiring or continued employment or for use in disciplinary actions. This includes asking an employee to access the personal account in the presence of the employer or asking to reproduce, photos, videos, or other information contained in the personal account. The prohibition is for accounts or electronic mediums that are used exclusively for personal purposes. Employers can still request access to business-related accounts, accessing company-issued devices, or restricting employees’ access to certain websites while on company networks or devices.
Increased Salary Thresholds for Payroll Exemptions. Effective March 13, 2024, S5572/A6796 increases the weekly salary threshold exemption for direct deposit consent requirements and pay frequency requirements for executive, administrative, and professional employees from $900 to $1,300.
Wage Theft is Criminal Larceny. Effective September 6, 2023, employers who fail to pay wages at the minimum wage rate, overtime rate, or promised wage rate are now potentially committing criminal larceny defined by Section 155 of the New York Penal Law under SB S2832A. Prosecutors are allowed to aggregate amounts not paid. If that amount exceeds $1,000, then the crime will be grand larceny in the fourth degree, which is a Class E felony. Such convictions can result in up to four years’ imprisonment. If the aggregated amount is more than $1 million, then the maximum prison sentence can be 25 years.
Use of Employee Inventions Restricted. Effective September 15, 2023, S5640 employment contract provisions requiring an employee to assign certain inventions are unenforceable. Under Labor Law Section 203-f, employers do not have rights to employee inventions created on the employee’s own time and independently from employer resources or trade secrets. Employers can only require employees to assign inventions if at the time of conception or reduction to practice, the invention: 1) relates to the employer’s business or the employer’s actual or demonstrably anticipated research or development; or 2) results from any work performed by the employee for the employer. There are still several unknowns about how the statute will be enforced, including the definition of “demonstrably anticipated.” Employers should have employment agreements and other affected documents reviewed by legal counsel.
Intern Protections for Gender Identity and Expression. Effective August 23, 2023, A7355/S7382 amends the New York State Human Rights law to protect interns from discrimination based on gender identity and gender expression. The amendment resolved ambiguity over whether the original applied to interns who do not receive compensation.
Action Items
- Review job postings for compliance with pay transparency laws.
- Have appropriate personnel trained on captive audience meeting prohibitions.
- Provide written notice of unemployment benefits to separated employees or those with reduction in hours.
- Have appropriate personnel trained on prohibition against soliciting personal account information from employees or job applicants.
- Update payroll processes to reflect increase in weekly salary threshold exemption.
- Review timekeeping and payroll processes for timely and accurate payment of all wages, including overtime.
- Have employment agreements, handbooks, policies, or other documents regarding invention assignments reviewed by legal counsel for compliance.
- Revise harassment and discrimination policies and trainings to include protections for interns.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that OneDigital is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 OneDigital
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