As New York independent schools prepare for the 2022-2023 school year, they would be wise to review their employee handbooks and other employee-facing policies to ensure they are in compliance with the most recent New York laws regarding electronic monitoring, job postings, whistleblower protections, and workplace discrimination and harassment. Below we have summarized several key employment law updates impacting New York independent schools.

Electronic Monitoring

Effective May 7, 2022, employers in New York must provide notice to employees before monitoring employees' electronic devices and systems. Previously, federal and state law allowed monitoring of these devices when express or implied consent was given by the employee. In other words, referencing in the employee handbook the ability to monitor electronic devices used to be sufficient. However, New York now requires employers to obtain an express written acknowledgment from employees permitting electronic monitoring.

Going forward, independent schools that monitor or intercept employees' telephone calls, email, and/or internet usage will need to obtain written acknowledgment from any new hires that such communications are subject to monitoring. In addition, independent schools will need to post a notice in a "conspicuous place" for current employees. The notice must advise employees that any and all telephone conversations, email communications, and internet access or usage may be subject to monitoring "at any and all times and by any lawful means."

Independent schools that do not comply with the law may be subject to penalties by the attorney general. Civil penalties start at $500 and can increase up to $3,000 for subsequent offenses. While the attorney general has the authority to impose penalties, the law does not create a private right of action for employees.

Job Postings and Salary Ranges

As you may be aware, New York prohibits employers from inquiring into the salary history of applicants and employees. In addition to this restriction, and effective November 1, 2022, a newly passed law will now require New York City employers to include the minimum and maximum starting salary for any advertised job, promotion, or transfer opportunity. Recent updates have clarified that the law applies to both hourly and salaried positions, meaning that advertisements for any job, promotion, or transfer opportunity must include statements of either minimum and maximum annual salary or minimum and maximum hourly wage. While salary information must be included in job advertisements, other forms of compensation and benefits (such as insurance, paid time off, and contributions to retirement plans) do not need to be disclosed.

Importantly, the law applies to independent schools, just as it does to other public and private employers. It would be wise for independent schools in New York City to review any positions that will be advertised to ensure compliance.

Enhanced Whistleblower Protections

Effective January 26, 2022, New York expanded whistleblower protections, moving away from a relatively narrow prohibition on retaliation against employees who complain of policies or practices that "create[] and present[] a substantial and specific danger to public health or safety." Notable among the expanded protections are the following:

• Employees are not the only individuals covered under the law. Former employees and independent contractors are also afforded protection.
• The policy or practice of which the employee complains need not actually constitute a danger to public health or safety – the employee must only reasonably believe that it violates the law or constitutes such a risk (even if they are ultimately incorrect).
• Employees need only make a "good faith effort" to notify their employer of a complained-of policy or practice, except in certain circumstances and including where the employee believes that the policy or practice could endanger the welfare of a minor or where the employee believes the independent school is already aware and will not correct its practices.
• Retaliation not only includes adverse employment action, such as termination, suspension, or demotion, but also includes threatening to report an employee or their family member's citizenship status to a federal, state, or local agency.

In addition, the amendments increase the statute of limitations to two years and require conspicuous posting of an employee's protections and rights. Independent schools in New York should ensure their whistleblower policies comply with these changes.

Amendments to New York Workplace Harassment and Discrimination Laws

On March 16, 2022, New York amended its workplace harassment and discrimination laws to further expand protections for employees. Among other things, New York amended its definition of "retaliation" to include disclosing the personnel files of an employee if they complain of, or assist in proceedings involving, unlawful discriminatory practices by employers. Therefore, independent schools may not reveal information found in an employee's personnel file to the media or the general public if an employee complains of harassment or discrimination. However, employers may disclose personnel files when filing or responding to a complaint in any judicial or administrative proceeding.

Additionally, effective July 14, 2022, New York will implement a toll-free and confidential hotline for employees with complaints of workplace sexual harassment. The hotline will be available during regular business hours and will offer counseling and other services to employees. The hotline must be referenced in independent schools' anti-harassment policies and postings.