A Year in Review: Notable Labor and Employment Law Developments of 2022
The year-end provides an opportune time to review some of the notable developments in the world of labor and employment law from this past year – and to take a look ahead at changes coming in 2023, including increased minimum wage and salary thresholds for employers in much of New York.
Updates and Changes in 2022
New York State Whistleblower Law Updated
Early this year, Section 740 of the New York Labor Law was amended to expand whistleblower protections with regard to the scope of both protected individuals and protected activities. Effective Jan. 26, 2022, the amended whistleblower law prohibits retaliation against employees who hold simply a “reasonable belief” that an employer’s activity, policy or practice is in violation of the law. Prior to the amendment, the law only applied to retaliatory actions taken against employees who disclosed or threatened to disclose a “substantial and specific” danger to public health and safety. The amendment also expanded the range of covered employees, now covering both “former employees” and “independent contractors” - a notable evolution with respect to the individuals protected under the New York Labor Law.
Brand New Electronic Monitoring Law for New York State
Effective May 7, 2022, the New York Civil Rights Law was amended to add Section 52-c, which broadly requires all private sector employers to provide notice to their employees regarding any electronic monitoring policies and practices. In particular, the notice must be provided to employees upon hiring, must also be posted in a conspicuous place in the workplace, and the employee must acknowledge the receipt of the notice in writing, or electronically.
Updates to New York State’s Anti-Harassment and Discrimination Laws
A few notable updates were made to New York’s workplace anti-harassment and discrimination laws in 2022. First, the N.Y. State Division of Human Rights established a “Toll Free Confidential Hotline,” to be used for assisting individuals with workplace sexual harassment complaints. Additionally, the New York State Human Rights Law (“HRL”) (New York State’s principal law prohibiting discrimination and retaliation in the employment setting), was amended to prohibit employers from disclosing the personnel file of any employee who opposed unlawful discrimination, filed a complaint, or testified or assisted in a legal proceeding to an unauthorized third party.
Rounding out the changes was another amendment to the HRL modifying the scope of covered “employees” under the law. The language of the law now explicitly covers employees working in state offices and certain political offices, as “the state of New York shall be considered an employer of any employee or official, including any elected official, of the New York state executive, legislature or judiciary, including persons serving in any judicial capacity, and persons serving on the staff of any elected official in New York state.”
NLRB Trends
The year marked a notable changing of the tides for employers with a union presence. Perhaps most prominent was the overarching trend towards aggressive enforcement proceedings by the National Labor Relations Board (“NLRB”). Cases overall in the NLRB jumped 13%; union representation petitions jumped 53%; and unfair labor practice charges rose by 19%. Employers should be ready for an increased number of charges in 2023.
Employers without a union presence should be mindful of efforts by workers to form unions in currently non-unionized workplaces. Employers should also prepare for the possibility of increasingly aggressive enforcement practices from the NLRB. The NLRB ended the year with a pair of decisions that illustrate these coming risks for employers.
New York State Ends Designation of COVID-19 Under the Hero Act
Effective March 17, 2022, New York State Commissioner of Health removed its designation of COVID-19 as an airborne infectious disease under New York’s HERO Act. The removal functioned as an “off-switch” for private-sector employers’ infectious disease prevention plan and protocols.
Despite the removal of the COVID designation, the HERO Act continues to mandate that New York employers do the following: create and or have an airborne infectious disease exposure prevention plan, provide a copy of the plan to employees within 30 days, provide a copy of the prevention plan to newly hired employees, post a copy of the plan at the work site, and update the plan as necessary.
New Pay Transparency Laws For New York State and New York City
On November 1, 2022, New York City’s Pay Transparency Law went into effect, broadly requiring employers make pay ranges available when positing advertisements for available positions. The law mandates all employers with four or more employees (at least one of whom works, in whole or in part, in New York City) must include a pay range in their job postings. Notably, fully remote positions may fall under the purview of the new law if a job candidate could perform the role from their home in New York City.
Shortly after the New York City law went into effect, New York State Governor Kathy Hochul signed statewide pay transparency legislation into law on December 21, 2022. The law goes into effect on Sept. 17, 2023. Similar to the New York City Pay Transparency Law, the statewide Pay Transparency Law mandates that any New York State employer with four or more employees post a requisite “range of compensation” (i.e., the minimum and maximum annual salary or hourly range of compensation that an employer, in good faith, believes to be accurate). Additionally, the statewide law requires that employers post a “job description” and also imposes certain record-keeping obligations.
Rise in Frequency-of-Pay Claims
Section 191 of the New York Labor Law requires companies employing “manual workers,” pay such workers their wages every week. The definition of a “manual worker” can include workers who spend at least 25% of their time worked engaging in “physical labor,” which includes such common tasks like sweeping, carrying and standing for long periods of time.
For decades, the law went mostly unnoticed as industries shifted to robust time-and-pay keeping systems and courts consistently ruled that Section 191 did not provide a basis for valid lawsuits. That changed in 2019 when an appellate court, the First Department of the N.Y. Appellate Division, ruled that paying wages less-than-weekly (i.e., every two weeks rather than every week) triggered damages to affected employees.
The ruling has generated a wave of litigation against businesses that employ “manual” workers, notwithstanding the fact the workers received their full pay, albeit every other week rather than every single week.
Employers maintaining a bi-weekly pay practice should work with experienced employment counsel to assess and mitigate potential risk.
Requiring Digital Copies of Workplace Postings
Effective December 16th, employers must ensure their workers have access to digital copies of mandatory workplace postings. The update presents an opportunity for employers to review their company handbooks and other workplace policies.
Coming in 2023:
Increased Minimum Wage and Minimum Salary for Overtime Exemption
Employers outside the downstate area – that is, New York City, Long Island, and Westchester County – will be required to pay higher wages to hourly workers and increased salary to overtime-exempt employees.
As of December 31, 2022, the minimum wage for employers located outside of downstate rises to $14.20 per hour, a one-dollar increase from the $13.20 per hour rate required in 2022. In the downstate area (NYC, Long Island, and Westchester) the minimum wage remains $15.00 per hour.
The minimum salary threshold for overtime exemptions also rises for employers outside of NYC, Long Island and Westchester County. Employers with employees in the “Executive” and/or “Administrative” exemptions from overtime will need to ensure these employees are paid at least $1064.25 per week, an increase of the previous minimum salary of $990.00 per week. In the downstate area (NYC, Long Island, and Westchester), the minimum salary threshold for these exemptions remains $1,125.00 per week.
Increased Wages for Service Workers
Similar to the minimum wage increase, employers in the hospitality industry (e.g., food and beverage) should take note of an increased wage for service workers who earn tips. Employers outside of New York City, Long Island, and Westchester County must ensure tipped food service employees earn at least $9.45 per hour, with an hourly tip credit increased to $4.75. Those same employers should ensure other tipped service employees (i.e., those not in food service) earn at least $11.85 per hour, with an hourly tip credit increased to $2.35.
Prohibition on “No-Fault” Attendance Policies
Effective Feb. 19 2023, “no-fault” attendance policies will be significantly curtailed as an amendment to the state Labor Law prohibits employers from using lawful absences as a “point” on no-fault attendance policies.
Employers utilizing such policies should start planning now for changes to attendance policies, and ensure their managers are aware of the change.
Employee vs. Independent Contractor Status Under FLSA
On Oct. 13, 2022, the U.S. Department of Labor published a proposed rule which would modify how workers are classified as either employees or independent contractors under the Fair Labor Standards Act (“FLSA”), the primary federal wage-and-hour law.
Under the proposed rule, determining whether a worker should be regarded as an employee or an independent contractor would focus more closely on the economic realities of the worker’s relationship with the employer and whether the worker is economically independent from, or alternatively, dependent on, their employer. Additionally, under the proposed rule, the determination as to whether a worker is “economically dependent” on an employer would involve as inquiry into the totality of the circumstances, where no one factor is dispositive.
The proposed rule, if adopted, could very well lead to more determinations that a worker is an “employee” rather than an independent contractor.
Effective Jan. 1, 2023, NYC Local Law 144 will effectively prohibit employers from implementing automated employment decision tools, commonly referred to as “AEDTs,” unless certain requirements are met with respect to their usage. Although the use of AEDTs is generally prohibited, employers may choose to keep these automated decision tools in place so long as it has been subject to a basis audit within the past year, and a summary of those most recent audits are made available on the employer’s website. Under the new law, an AEDT definitionally includes “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making” for employment decisions.
“Siblings” Added to New York Paid Family Leave, and Increased Benefits for Leave
Effective Jan. 1, 2023, New York’s Paid Family Leave Law (“PFL”) will allow employees to take leave if a sibling is suffering from a serious health condition. The update expands the list of family members that employees can take leave to care for. “Siblings” will include biological siblings, adopted siblings, stepsiblings, and half-siblings.
Paid benefits under PFL will also increase. Capped at 67% of the statewide average weekly wage, the maximum benefit will rise to $1,131.08 per week.
Continued COVID Sick Leave and Paid Vaccination Leave
New York’s Paid COVID Sick Leave remains in effect. Employees’ leave eligibility is dependent upon the employee’s isolation status and their employer’s size. More information is available on the state’s COVID Sick Leave website.
New York also continued the state’s Paid Vaccination Leave, enabling employees to take up to four paid hours off work to receive a COVID vaccination. The law is slated to remain in effect until Dec. 31, 2023.
