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As 2022 was coming to a close, New York State Governor Kathy Hochul was busy endorsing new laws that impact employers throughout the state. The year-end legislative flurry added to an already eventful year of new employment laws in New York City and New York State. Below is a summary of the latest laws to impact New York employers as we kick off 2023.
Starting on November 1, 2022, any written description of an available job, promotion, or transfer opportunity publicized to a group of potential applicants, whether internally or externally, that “can or will be performed in New York City” must include a good-faith salary range. This “good-faith” range means the salary range that the employer honestly believes at the time they are listing the job that they are willing to pay the successful applicant. Guidance issued by the City has clarified that only base salary and no other components of compensation like bonus compensation, 401(k) contributions, commissions, and equity, need to be included in the postings. Similar laws went into effect in 2022 in Westchester, Ithaca, and Albany counties.
Not to be outdone, New York State has now also passed a pay transparency law that goes into effect in September 2023. Like the New York City law, the State law will require employers to disclose a good-faith salary range for any position that will be, or might be, performed in New York. The State version of the law, though, has a few noteworthy distinctions from its City counterpart. Notably, if the employer has a job description for the role, that job description must also be included with the posting under the State law. Marking another difference from the New York City legislation, for commission-based positions, the New York State law requires “a general statement that compensation shall be based on commission” on the job posting. Finally, the New York State law includes a requirement for employers to maintain “necessary records” of the history of compensation ranges for each position and job descriptions, to the extent they exist.
The New York State Human Rights Law has additional employee protections based upon 2022 amendments. First, in March 2022, New York added a specific category of unlawful “retaliation” for the disclosure of an employee’s personnel file. Second, in July 2022, New York announced a confidential hotline for people experiencing sexual harassment in the workplace to connect with pro bono attorneys on sexual harassment issues or to submit a complaint. Finally, on December 23, 2022, the New York State Human Rights Law was amended to cover citizenship and immigration status.
In likely recognition of the remote and hybrid work environment many employers have embraced, New York State now requires employers to make available to employees electronically those notices, posters and documents that are required to be posted in the workplace. The law also dictates that employers provide notice that documents required for physical posting are also available electronically.
The New York Paid Family Leave Law was amended effective January 1, 2023, to specify that a sibling is a family member for which an employee can take protected family leave.
In addition, New York passed an amendment to New York Labor Law Section 215, which provides that it shall constitute unlawful retaliation for an employer to discipline workers by assessing point or deductions from a timebank when an employee has used any legally protected absence. The law covers, but does not define, all “legally protected absence pursuant to federal, local or state law.” This new provision goes into effect on February 19, 2023.
Starting on June 7, 2023, employers throughout New York State will need to ensure that they provide a designated lactation space that has a chair, table, access to nearby running water, electricity and that is (i) in close proximity to the work area; (ii) well lit; (iii) shielded from view; (iv) free from intrusion from other persons in the workplace or the public. These requirements are similar to existing obligations for New York City employers. However, employers should be on the lookout for a new notice to be developed by the New York State Department of Labor and which will need to be provided to employees upon hire, annually thereafter, and to employees returning to work following the birth of a child.
Passed at the end of 2021 with an original effective date of January 1, 2023, New York City Local Law 144 regulates employers’ use of “Automated Employment Decision Tools” (“AEDT”). Local Rule 144 defines AEDT as “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.” Before an employer can use AEDT to “automate, support, substantially assist or replace discretionary decision-making processes,” the law requires employers to conduct a bias audit, make the results of that bias audit available to the public, provide notices to an employee or candidate that AEDT will be used and for what purpose, and allow an employee or candidate to require an alternative selection process or accommodation.
The New York City Department of Consumer and Worker Protection is charged with developing rules for the law. Among the issues that are contemplated in the proposed rules that were initially released in September 2022 are clarifying terms contained in the law, expanding upon the requirements of the bias audit, and explaining the notice requirement. In a late December 2022 update, however, the Department announced that it was scheduling a second public hearing to address comments to its proposed rules and that it will not enforce the law until April 15, 2023.
For New York City employers who use AEDT, this is definitely a law to keep a close eye on.
Compliance with these new, overlapping, and in some cases, complicated, New York State and City laws can be challenging. If you have any questions or concerns, we are here to help.