New York Employment Law Bulletin January 2018

2018 is here, and New York employers need to be sure they are in compliance with the following significant changes to employment laws:

  • Paid Family Leave: Effective January 1, 2018, New York State will require paid family leave coverage to be funded by employee payroll contributions.  The paid leave coverage is provided to employees who need to bond with a newly born, adopted or fostered child, care for a family member with a serious health condition, or assist loved ones when a family member is deployed abroad on active military duty.  Employees are eligible for benefits after 26 weeks of employment if they have a regular work schedule of 20 or more hours per week.  In 2018, employees are eligible for up to eight weeks of paid leave at 50% of their average weekly wage (up to 50% of the New York State average weekly wage), which will increase to 12 weeks by 2021.  Employers must reinstate employees to their same or comparable job upon return from Paid Family Leave, or risk exposure to discrimination and/or retaliation claims.  Importantly, employers are required, among other things, to provide notice to their employees of the Paid Family Leave program, including displaying in their place of business a poster regarding coverage.  Employers should therefore take steps to revise their Employee Handbooks.
  • Salary History: It is now unlawful in New York City for all employers and employment agencies during the hiring process to inquire about or rely upon an applicant’s salary history when determining the applicant’s salary, benefits or other compensation.  The law prohibits asking the applicant, the applicant’s current or prior employer, or searching publicly available records, for the purpose of obtaining an applicant’s salary history.  Where a non-salary background check discloses the applicant’s salary history, the employer may not rely upon the salary history to determine compensation.  However, employers are permitted to do the following: inform an applicant about the proposed salary or range of salary; inquire into the applicant’s productivity (revenue, sales, production); “engage in discussion” about the applicant’s “expectations,” so long as the employer does not inquire into salary history; and consider the applicant’s salary history and verify the history if disclosed by the applicant “voluntarily and without prompting.”  Note that the law only applies to new hires, and not to internal candidates for promotion or transfer.  A violation is considered an “unlawful discriminatory practice” under the New York City Human Rights Law, and there is a broad range of remedies available for violations.  Employers and employment agencies should review their job applications to eliminate any salary inquiries.  Also, all personnel involved in the interview and hiring process, such as human resources personnel, recruiters, and hiring managers, should be trained to avoid inquiry into, and reliance upon, applicants’ salary history.
  • Freelance Workers: New York City now protects freelance workers pursuant to the law called “Establishing Protections for Freelance Workers,” or the “Freelance Isn’t Free Act.”  The law provides freelance workers with the right to a written contract where the value of the contract is $800 or more, either on its own or when aggregating all contracts between the same parties for the preceding 120 days.  There are minimum requirements to be included in the written contract such as the names of the parties, an itemization of all services to be provided, the value of the services, rate and method of compensation, and the date on which payment must be made or the mechanism for determining that date.  The law requires the freelance worker to be paid on or before compensation is due under the terms of the contract.  If the contract does not specify the date of payment or the mechanism for determining the date, payment shall be made no later than 30 days after the completion of the services.  Once performance of the services has begun, a hiring party shall not require as a condition of timely payment that the freelance worker accept less compensation than the amount provided in the contract.  The law also prohibits retaliation and creates penalties for violations. Any person or business who hires a freelance worker in New York City should familiarize itself with the law, because there are significant consequences for failing to comply.  By its terms, the law applies only to contracts entered into on or after the effective date, which was May 15, 2017.
  • Fair Workweek for Fast Food and Retail Workers: New York City’s Fair Workweek Law became effective as of November 26, 2017.  The law was designed to ensure that fast food and retail workers are given predictable schedules and paychecks.  The law and the implementing rules promulgated by the Department of Consumer Affairs Office of Labor Policy and Standards, are detailed and complex.  We provide the following summary of the practices covered, and urge employers in these industries to make changes to ensure compliance:
    • Fast food employers are required to provide each employee with a good faith estimate of their work schedule upon hire, which must be updated for any long-term or indefinite changes. Employers who make schedule changes less than two weeks in advance are required to pay a premium to the employee.
    • “Clopenings” for fast food employees are banned, so that employees cannot be required to work back-to-back shifts by closing the establishment on the first shift and opening it on second shift the next day, with fewer than 11 hours in between, unless the employee consents and is paid a $100 premium to work the shift.
    • Existing employees must be given priority to work open shifts.
    • Fast food employees must be permitted to designate part of their salary to a nonprofit organization and require employers to deduct and remit the donation to the not-for-profit.
    • The practice of “on-call” scheduling of retail employees is now banned, and retail employers are prohibited from cancelling or adding work shifts within 72 hours of the start of the shift.
    • Employers are also saddled with extensive recordkeeping and records retention obligations, together with the requirement to post notice of employees’ rights under the Fair Workweek Law.

Fast food and retail employers should modify their scheduling procedures, and train all managers and others involved in setting schedules of the new requirements.

  • Minimum Wage: On December 31, 2017, minimum wage for employees of large employers in New York City (11 or more employees) increases to $13.00 per hour, and increases to $12.00 per hour for small employers (10 employees or less).

This New York Employment Law Bulletin is not intended as legal advice but is provided to inform clients and other interested parties about legal matters of current interest.  If you have any questions regarding these issues, please contact the Law Office of Peter G. Goodman, PLLC, 212-386-7619, peter@goodmanpllc.com.