New York employers face new requirements under recently enacted laws and regulations

31 October 2023 8 min read

By Cassie Boyle

At a glance

New York employers are facing new legal obligations under several laws recently signed by New York Governor Kathy Hochul.
Those operating in New York City must also prepare to comply with changes to existing regulations related to earned safe and sick time.
The key changes have been highlighted below.

New law criminalises wage theft in New York

On 6 September 2023, New York Governor Kathy Hochul signed Senate Bill (SB) 2832-A, classifying wage theft as a form of larceny in New York State and allowing prosecutors to aggregate all non-payments or underpayments to an individual or workforce into one larceny count, even if the non-payments or underpayments occurred in multiple counties. Effective immediately, employers found guilty of larceny commit a misdemeanour or felony depending on the value of the property stolen under the penal code.

New York employers can’t require workers’ social media information

On 14 September 2023, New York Governor Kathy Hochul signed AB 836, prohibiting employers from requesting or requiring access to personal electronic communication accounts of prospective or current employees. Specifically, the new law prohibits employers from requesting, requiring, or coercing employees and job applicants to:

Disclose their username, password, or other authentication information for accessing their personal account through an electronic communications device;
Access their personal account in the presence of the employer; or
Reproduce in any manner photographs, video, or other information contained within a personal account obtained through a prohibited means.

The new law defines 'personal account' as an account or profile on an electronic medium where users can create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, podcasts, instant messages, or internet website profiles or locations, which are used by an employee or applicant exclusively for personal purposes. It defines 'electronic communications device' as any device that uses electronic signals to create, transmit, and receive information, including, but not limited to computers, telephones, PDAs and other similar devices.

Importantly, the law does not prohibit or restrict employers from viewing or accessing information about an applicant or employee that can be obtained without any required access information, that is available in the public domain, or for the purposes of obtaining reports of misconduct or investigating misconduct. Further, employers may require an employee to disclose any username, password or other means for accessing nonpersonal accounts that provide access to the employer's internal computer or information systems.

The law takes effect on 12 March 2024.

New York passes law to protect worker inventions

On 15 September 2023, New York Governor Kathy Hochul signed SB 5640, banning employers from requiring employees to assign inventions or other intellectual property that the employee develops on their own time and without using employers' equipment, supplies, facilities, or trade secret information. Effective immediately, any such provisions are against the public policy of the state and are unenforceable.

Importantly, the law excepts those inventions that either:

Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development; or
Result from any work performed by the employee for the employer.

New York requires notice of the right to file for unemployment benefits

On 14 September 2023, Governor Hochul signed legislation SB 4878-A/A. 398-A, requiring employers to provide a written notice of the right to file for unemployment benefits to any employee whose employment has been terminated or whose scheduled working hours have been reduced.

The notice must be given at the time of the permanent or indefinite separation from employment, reduction in hours, temporary separation and any other interruption of continued employment that results in total or partial unemployment. It must be provided in writing on a form provided or approved by the department and include the employer’s name and registration number and contact address.

New York issues guidance on pay transparency law

As of 17 September 2023, New York’s pay transparency law requires New York State businesses with four or more employees to list compensation ranges for designated job opportunities, promotions, and transfers that can or will be performed at least in part in New York or that report to a supervisor or office in New York State.

Proposed regulations were published on 13 September 2023, and are open to public comment until 13 November 2023. The New York State Department of Labour also issued employer guidance, including facts sheets and frequently asked questions.

New York raises salary threshold

On 15 September 2023, Governor Hochul signed SB 5572, which increases the weekly salary threshold in New York for exemption from state wage payment laws to USD1,300 from USD900, effective from 13 March 2024. The law applies to the executive, administrative, and professional employee exemption from state laws regulating direct deposit and pay frequency.

New York bans captive audience meetings

Signed by Governor Hochul on 6 September 2023, and effective immediately, SB 4982 bars employers from terminating or otherwise retaliating against an individual for refusing to:

Attend an employer-sponsored meeting with the employer or its agent, representative or designee, the primary purpose of which is to communicate the employer's opinion concerning religious or political matters; or
Listen to speech or view communications, the primary purpose of which is to communicate the employer's opinion concerning religious or political matters, including labour organisations.

NYC amends earned Safe and Sick Time Act regulations

Effective 15 October 2023, the New York City Department of Consumer and Worker Protection (the Department) released amendments to the New York City Earned Safe and Sick Time Act (ESSTA) which provide clarity on various ESSTA topics including employer size, employee eligibility, notice requirements, documentation standards, payment of sick / safe time, and policy requirements.

In addition, new final rules provide some interesting and potentially meaningful clarifications for employers. According to the final rules:

Employer size shall be determined based on the employer’s total number of employees nationwide.
For employers that increase the number of employees during a calendar year from 99 or fewer to 100 or more, an employee’s right to use additional paid safe / sick time up to 56 hours shall be prospective from the date of such increase in the number of employees.
An employer may require an employee to provide reasonable notice of the need to use safe / sick time, provided the requirement to provide notice and the method of providing notice are set forth in the written policy required by section 7-211.
A need is foreseeable when the employee is aware of the need to use safe / sick time seven days or more before such use. Otherwise, the need is unforeseeable.
With respect to requiring employees to provide a doctor’s note, 'unless otherwise required by law, an employer must not require an employee to submit such documentation before returning to work. If an employer requests or requires documentation for sick time and the licensed health care provider charges the employee a fee for the provision of such documentation, such employer shall reimburse the employee for such fee. If an employer requests or requires documentation for safe time, such employer shall reimburse an employee for all reasonable costs or expenses incurred for the purpose of obtaining such documentation for the employer.'
- An employer that requires employees to provide reasonable written documentation for uses of safe / sick time in accordance with subsection(a) of this section must set forth this requirement, along with the types of reasonable written documentation the employer will accept and instructions on how employees can submit the documentation to the employer, in the written safe / sick time policy required by section 7-211.
- If an employer requests or requires documentation and the employee has provided to the employer such documentation and proof of the fee or reasonable costs incurred for the purpose of obtaining such documentation, the employer shall reimburse the employee for such fee or reasonable costs in accordance with subsection(c) of section 7-206 no later than the payday for the next regular payroll period beginning after the provision of such proof.
The pay statement or other form of written documentation required by section 20-919(c) of the Administrative Code must inform the employee of the amount of safe / sick time accrued and used during the relevant pay period. It must also inform the employee of the total balance of the employee’s accrued safe / sick time available for use. As set forth in section 7-214(f), an employee’s accrued safe / sick time balance may exceed the amount of safe / sick time the employee has available for use in a calendar year. When this occurs, the pay statement or other form of written documentation must inform the employee of the amount of safe / sick time available for use in the calendar year.
- If an employer uses an electronic system to issue pay statements or other documentation related to safe / sick time, the employer may comply with the requirements of section 20-919(c) of the Administrative Code by electronically alerting the employee each pay period to the availability of the required information; making the content required by section 7-212(b)(4) readily accessible by the employee outside of the workplace within the electronic system; and maintaining accrual, use, and balance information for any past pay period in the electronic system such that it is readily accessible to the employee outside of the workplace.
Written policies must include, 'a statement that the employer will not ask the employee to provide details about the medical condition that led the employee to use sick time, or the personal situation that led the employee to use safe time, and that any information the employer receives about the employee’s use of safe / sick time will be kept confidential and not disclosed to anyone without the employee’s written permission or as required by law.'

Other pending bills

New York employers are also monitoring other pending bills. In particular, in late June 2023, the New York legislature passed a bill that, as presently drafted, would ban all non-competes in the employer-employee context, regardless of an employee's salary, industry or job function, and create a private right of action for employees to sue employers that seek to impose or enforce a non-compete. If signed and approved by Governor Kathy Hochul, the bill would apply prospectively to non-competes entered into or modified on or after its effective date (30 days following the Governor’s approval). Read more about the bill’s language and ambiguities here.