Legislation Archives

August 26, 2011


On August 17, 2011, the New York City Council unanimously passed the Workplace Religious Freedom Act, Int. No. 632-A. The law seeks to amend New York City's Human Rights Law as it pertains to unlawful discriminatory practices motivated by religious animus. Pursuant to the new bill, both public and private employers will be required to foster environments that are supportive of religious practices.

Democratic councilman, Mark Weprin of Queens, co-sponsored and advocated for the legislation. Weprin introduced the anti-religious discrimination legislation more than a year ago to extinguish concerns brought by Sikh constituents in his home district, particularly with respect to New York City Police Department policy prohibiting beards and requiring a hat.

Under the current bill, employers must accommodate various aspects of religion including observance of religious practices, allowing traditional, religious attire in the workforce, allotting time off for observance of religious holidays, and allowing for prayer throughout the workday. The employers' burden, in order to prohibit a particular religious practice, is also heightened under the new bill. As the Human Rights Law currently reads, employers can prohibit a religious practice with a simple showing that such observance will cause an "inconvenience." The proposed legislation will raise the bar and require a showing of "undue hardship" that takes into account many factors such as financial resources, any effect the observance will have on business expenses and resources, size of the business, number of employees, and the nature of the accommodation. Violators will be subject to civil penalties ranging up to $125,000 and awards to the aggrieved employee of back pay, compensatory damages, and reinstatement. In cases of willful, wanton, and malicious discriminatory acts, violators may be subject to penalties ranging up to $250,000.

The new bill requires the signature of New York City Mayor Michael R. Bloomberg, before it becomes law. If passed, the New York City Human Rights Commission would be able to bring an enforcement action in any court of competent jurisdiction.

This post was authored by Matt Lampe, Joseph Bernasky, and Michele Bradley of Jones Day.
The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

October 28, 2011

Will New York Join the Wave of States Passing Laws Restricting Employers' Use of Applicant and Employee Credit History?

Since October 26, 1970, the federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"), has imposed restrictions and disclosure requirements on employers who seek to procure and use applicant and employee credit history and other information obtained from third-party background checks.  In reaction to the recent economic downturn, a number of states have imposed further restrictions and prohibitions on employer use of applicant and employee credit history in the employment context.  Proponents of these new restrictions argue that in the current economic climate, in which jobs have been lost and investments have tanked, many currently unemployed but otherwise qualified applicants now have low credit scores through no fault of their own.  These applicants - particularly those who have lost their jobs as a result of the economy - should not, according to proponents of the new restrictions, be further penalized by having a poor credit rating impact their chances of obtaining employment. 

Most recently, on October 10, 2011, California passed Assembly Bill No. 22 ("Bill 22"), amending California's Consumer Credit Reporting Agencies Act ("CCRAA").  Bill 22 outright bans California employers, with the exception of certain financial institutions, from requesting a consumer credit report for employment purposes beginning on January 1, 2012, unless one of eight narrow exceptions applies.  And, even if one of the exceptions does apply, Bill 22 imposes additional disclosure requirements on the use of consumer credit reports above-and-beyond those already imposed by the FCRA.  Several other states have passed similar laws, including Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington.  

In line with this recent trend, three bills have been introduced in New York that would impact New York employers' ability to request and rely on applicant and employee credit history in making employment decisions. 

·        Assembly Bill 4052, introduced on February 1, 2011, would prohibit the use of a job applicant's or employee's personal credit history background check in the hiring or promotion process, unless such information directly relates to the position sought, and even then, the information obtained cannot be a determining factor in the decision-making process.  If an employee or applicant consents to a credit history background check, he or she must sign a consent form that explicitly states the specific purpose, use and limitations on the use of the credit history background information as it pertains to the position sought.  There have been no votes on this bill, but it has been referred to the committee on governmental operations.

·        Assembly Bill 6672 (Senate Bill 1519), introduced on March 24, 2011, would prohibit or severely limit the ability of an employer to use a consumer credit report in making any decisions relating to hiring, promotions, discipline or terminations.  An employer may request and use a consumer credit report only in two limited situations: (1) if the information is substantially related to the position, for instance if the position involves access to money, assets or confidential information; or (2) if the information is for a managerial position, a position in the office of court administration, a position with a law enforcement agency, or a position for which the information contained in such report is required to be disclosed or obtained by the employer.  Before an employer may request or use a consumer credit report, the employee or prospective employee shall be given and sign an authorization of consent form that explicitly states the specific purpose, use and limitations of use of such report as it pertains to the position sought.  There have been no votes on this bill, but it has been referred to the committee on consumer affairs and protection.

·        Assembly Bill 8070 (Senate Bill 4905), introduced on May 27, 2011, known as the Credit Privacy in Employment Act, would prevent an employer from requesting or using information in the credit history of a job applicant or employee in connection with or as a criterion for employment decisions related to hiring, termination, promotion, demotion, discipline, compensation, or the terms, conditions or privileges of employment.  An employer may use such information if required by state or federal law to use such credit history.  If an employer requests a credit history for positions in which such information can be collected, the employee or applicant must sign an authorization of consent form authorizing such use.  As with the other three bills, there have been no votes on it to date, but it has been referred to the committee on consumer affairs and protection.

Despite recent initiatives to restrict employer use of applicant and employee credit history - or perhaps because of them - on July 20, 2011, Governor Cuomo signed into law Assembly Bill 8159 (originally Senate Bill 3987) ("Bill 8159").  This new law amends the New York Education Law to permit background checks, including criminal background and credit checks, of employees and prospective employees of the Higher Education Services Corporation ("HESC").  HESC is the State's student financial aid agency that manages more than 18 grant, scholarship and loan programs, and offers guidance to students, families and counselors.  Although at first blush it may appear that this law runs against the tide of recent legislative initiatives on employee background checks, Bill 8159 actually encompasses the type of exception seen in the recent legislation.  For example, California's Bill 22 contains an exception allowing the collection of consumer credit report information when the information contained in the report is required by law to be disclosed or obtained.  Even the proposed legislation in New York contains exceptions allowing the use of credit information when that information has a direct relationship to the position sought or is required by law. 

In the end, employers in New York and elsewhere should continue to monitor developments in this area to ensure that their practices are in line with the expanding patchwork of state laws on the issue.

This post was authored by Matt Lampe, Joseph Bernasky, and Emilie Hendee of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.



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December 9, 2011

NY Legislature Expands Ability of Municipalities To Recover Police Training Expenses

In a little-recognized effort to generate "mandate relief" associated with its recently-enacted "Tax Cap," the New York Legislature amended General Municipal Law ("GML") § 72-c to enable more municipalities to recover expenses related to the initial training of their police and peace officers in the event that such officers decide to transfer to another municipality within their first three years of service.

Historically, GML § 72-c permitted only municipalities with populations of "ten thousand or less" to seek reimbursement for expenses incurred in the training of members of its police force who commenced employment with another municipality's police force within three years of graduating from the police training program (e.g., the police academy). Because police training is funded by municipal tax dollars, GML § 72-c originally served to protect small municipalities against the debilitating financial losses associated with the departure of their newly-hired and trained police officers for larger, more lucrative and/or more desirable jobs. Without the protections of GML § 72-c, these small municipalities would never see the benefit of the costly training they had provided to the departing officers.

In light of the ongoing financial hardships currently faced by all municipalities across New York, effective June 24, 2011, the Legislature eliminated the requirement from GML § 72-c that the municipality which provided the police training "hav[e] a population of ten thousand or less" to be eligible to seek reimbursement. According to the legislation (Laws of 2011, Ch. 97, Pt. C, Subpt. C, Sec. 1), if a police or peace officer commences employment with another police department within three years of graduating from police training, any municipality, regardless of size, can recover training expenses from the officer's new employer. The amount that a municipality may recover includes: "... salary, tuition, enrollment fees, books, and the cost of transportation to and from training school ...." The formula for calculating the recoverable amount reimburses the prior municipal employer on a pro rata basis. Simply put, the new municipal employer must pay the officer's prior municipal employer the per diem cost of training expenses for each day from the officer's last day of service with the original employer until he/she would have worked for three years.

GML § 72-c, as amended, will provide many municipalities - especially those with large police departments that have historically served as "feeder" organizations for other police departments around the State - with a new means of recovering some of the lost costs it once incurred. In these turbulent economic times, these recovered costs could help financially-strapped municipal budgets. Whether it actually provides significant "mandate relief" for municipalities, or it simply results in new forms of litigation, is yet to be determined.

This post was authored by Christopher T. Kurtz of Bond, Schoeneck, & King, PLLC.

January 5, 2012

First Annual Written Pay Notice under the New York Wage Theft Prevention Act Due by February 1, 2012

            2012 is the first year that private-sector New York employers must provide the annual written pay notice required by the Wage Theft Prevention Act.  Although the initial passage of the Wage Theft Prevention Act over a year ago garnered significant attention, it is worth reiterating now that the February 1 deadline for provision of the annual notice is rapidly approaching and employers should use the remaining time to ensure compliance with the new notice obligations.


            On December 14, 2010, then-Governor David Paterson signed the Wage Theft Prevention Act, S. 8380/ A. 11726 (the "Act"), into law in New York State, which amended Section 195 of the New York Labor Law.  Joining a growing number of states with similar wage theft legislation, the Act sought to address classification of employees and payment of statutorily-mandated minimum wages and overtime, and included enhanced civil and criminal penalties for non-compliance.  In effect since April 9, 2011, the requirements applies to all private-sector employers in New York.


            Under the Act, every employee, whether full or part-time, whether covered by a union contract or not, and regardless of exempt status, must receive a written pay notice between January 1 and February 1 of each year, including the following information:

  • the employee's rate of pay, including overtime rate of pay, if non-exempt;
  • the basis of the wage payment (e.g., by  the  hour, shift, day, week, salary, piece, commission, or other); 
  • the regular payday;
  • the allowances taken as part of the minimum wage (e.g., tip, meal and lodging deductions); 
  • the employer's official name and any other "doing business as" names; and 
  • the address and phone number of the employer's main office or principal location, and mailing address if different. 


2012 is the first year that employers must provide the annual written pay notice, which applies even if none of the information has changed from the prior year.          


            Under the Act, the notice must be provided in English and in the employee's primary language if the New York Department of Labor ("NY DOL") offers a translation.  Currently, the NY DOL offers dual language translations in Chinese, Haitian Creole, Korean, Polish, Russian, and Spanish, all of which are available here.  Employers with seasonal employees on layoff between January 1 and February 1 must furnish the notice as soon as the employees return from layoff.  The notice may be distributed electronically, but only if employees' receipt of the notice and acknowledgment is verifiable and if the employee is able to print a copy for their records. 


            In addition, the Act requires employers to obtain a signed and dated acknowledgment of the notice from each employee.  Employers must retain copies of the notice and accompanying acknowledgment for six years, and provide them to the NY DOL upon request.  If an employee refuses to acknowledge the notice, an employer should still give the notice and note the refusal on its retained copy.  Moreover, an employee cannot waive the written notice requirement.  The NY DOL can assess penalties of $50 per week per employee if a proper written notice is not provided, and employees can sue for not receiving a proper written notice with damages capped at $2,500 per employee. 


            With the February 1, 2012 deadline rapidly approaching, employers should take any remaining steps necessary for to meet the annual notice requirements.  The NY DOL provides web-based, printable model templates for employers seeking guidance, which are available here.  The Act does not require the use of these particular forms, and employers may develop their own forms so long as all the information legally required is included.  The NY DOL has also published a Fact Sheet on the Act, available here, and a set of FAQs, available here.


            This post was authored by Matt Lampe, Joseph Bernasky, and Jenny Ma of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.



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January 12, 2012

Spotlight On Legal Complexities Of Telecommuting After Second Circuits Calls It Potential Reasonable Accommodation

            The Second Circuit Court of Appeals recently ruled that telecommuting is a potential reasonable accommodation under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act.  Although new technologies have made telecommuting more commonplace, not all employers have embraced the work-from-home concept.  The Second Circuit's recent opinion, as well as recently proposed and enacted telework legislation, highlight that employers cannot ignore telecommuting, and should consider the myriad legal issues that telecommuting presents, including wage-and-hour liability, privacy and data protection concerns, workplace safety, and other obligations. 


The Second Circuit's Opinion on Telecommuting as a Reasonable Accommodation


            In Nixon-Tinkelman v. N.Y. City Dep't of Health & Mental Hygiene, No. 10-3317-cv, 2011 WL 3489001 (2d Cir. Aug. 10, 2011), the plaintiff suffered from several physical ailments including cancer, heart problems, hearing impairment, and asthma.  The plaintiff had worked at the New York City Department of Health and Mental Hygiene ("DOHMH" or the "Department") since 1984 and had worked out of DOHMH's Queens office for 21 years as a Regional Director.  In January 2006, she was transferred to the Department's Manhattan location.  The transfer resulted in a longer and more difficult commute for Ms. Nixon-Tinkelman.  As a result, she requested, as an accommodation for her disability, to be reassigned to a "work location closer to home in order to reduce the stress and anxiety associated with the hour and a half commute each way every day."  Representatives from the Department met with Ms. Nixon-Tinkelman to discuss possible alternative assignments.  DOHMH concluded that one of the assignments in which Plaintiff expressed an interest was "inappropriate" because the job required extensive travel and therefore would not resolve Ms. Nixon-Tinkelman's commuting issue.  DOHMH further concluded that Ms. Nixon-Tinkelman's suggestion of a transfer to the Department's Pest Control Office in Queens was not a "viable" option.  Because the Department believed that there was no suitable reassignment that could be made within the organization to accommodate Ms. Nixon-Tinkelman, they denied her request.  Ms. Nixon-Tinkelman filed suit under the ADA and sections 501 and 504 of the Rehabilitation Act, alleging that the Department failed to make a reasonable accommodation.


            Under the ADA and Rehabilitation Act, an employer has an affirmative duty to provide a reasonable accommodation when it is aware that an employee has a qualifying disability that prevents the employee from performing essential job functions, so long as the accommodation does not unduly burden the employer.  Granting summary judgment for the defendant, the Southern District of New York ruled that commuting was beyond the scope of the plaintiff's job, and "not within the province of an employer's obligations under the ADA and the Rehabilitation Act."  The Second Circuit reversed, relying on two prior cases in which the Second Circuit ruled that an employer might have an obligation to assist with an employer's commute:  Lyons v. Legal Aid Soc'y, 68 F.3d 1512 (2d Cir. 1995); and DeRosa v. Natl's Envelope Corp, 595 F.3d 99 (2d Cir. 2010). 


            In Lyons, the Second Circuit reversed the dismissal of an ADA claim alleging that Plaintiff's employer failed to accommodate her request for a parking space near her office.  The district court dismissed the case on the ground that the accommodation requested by Lyons was unreasonable as a matter of law; however, on appeal, the Second Circuit ruled that the complaint stated a claim on which relief could be granted, holding that "there is nothing inherently unreasonable . . . in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work."  In DeRosa, the Second Circuit suggested that permitting a disabled employee to work from home was a reasonable accommodation.  The DeRosa court vacated an award of summary judgment for the employer, in which the district court ruled that the plaintiff was judicially estopped from bringing an ADA claim.  In so doing, the Second Circuit did not question the reasonable accommodation--working from home--that the Plaintiff sought.  The Nixon-Tinkelman court's reliance on DeRosa implies that the Second Circuit interprets the decision as standing for the proposition that working from home can be a reasonable accommodation.


            In Nixon-Tinkelman, the Court of Appeals explained that the determination of whether an accommodation is "reasonable" must be made on a case-by-case basis and remanded the case back to the trial court to conduct the required "fact-specific inquiry."  The Second Circuit made clear that employers cannot categorically deny requests for an accommodation to work from home or to receive other commuting accommodations.  Rather, employers must assess the circumstances of such requests on an individualized basis as they would with any other request for an accommodation.  The Second Circuit suggested a non-exhaustive list of factors for the trial court to use in evaluating the reasonableness of a potential accommodation, such as:


·        The number of individuals employed by the employer;

·        The number and location of the employer's offices;

·        Whether other available positions existed for which the employee was qualified;

·        Whether the employee could have shifted to a more convenient office without unduly burdening the employer's operations; and

·        The reasonableness of allowing the employee to work from home without on-site supervision.


The Second Circuit further provided illustrative examples of commuting accommodations that the district court should consider, including whether DOHMH could: (1) transfer Ms. Nixon-Tinkelman back to Queens, (2) permit her to work from home, or (3) provide her a car or parking permit to minimize the burden of her commute and make it easier for her to travel to and from her doctor's appointments.


Recent Legislative Initiatives to Increase the Availability of Telecommuting


            The Second Circuit's decision is in line with a recent trend favoring telecommuting.  On December 9, 2010, President Obama signed into law the Telework Enhancement Act, which gave federal agencies a six-month window of time to establish a telework policy and notify employees of their eligibility under the policy.  The new law requires each agency to implement a telework policy, designate a telework managing officer to oversee the agency's telework program, and ensure continuity-of-operations planning, particularly when employees' commutes are affected by inclement weather.  Several states, including Connecticut, Florida and Virginia, have also recently implemented or proposed legislation regarding telecommuting.  For example, New Jersey has proposed legislation that provides private sector tax incentives for certain business telecommuting program development and implementation costs and a separate bill that requires state agencies to adopt telecommuting programs.  In June 2010, Connecticut enacted a law to develop and implement telecommuting guidelines for state employees with the goal of having a positive effect on worker efficiency, the environment, and traffic congestion.  In New York, legislation has been proposed to require public employers to establish policies and programs allowing public employees to perform all or a portion of their duties remotely (see, e.g., A00206 / S 1381) as well as establishing tax credits for employers who enact policies to encourage teleworking (see S 2065).  This wave of legislative activity, along with the Second Circuit's recent opinion, provide a good opportunity for employers to consider the legal, operational, and administrative issues related to telecommuting.


Wage-and-Hour Concerns Arising from Telecommuting


            The Nixon-Tinkelman decision acknowledges that lack of supervision may pose difficultly in allowing an employee to work from home.  This may be particularly true for non-exempt employees.  Aside from the more obvious concern of some employers about a loss of productivity absent on-site supervision, there is also a converse risk that overzealous non-exempt employees would work "off-the-clock," i.e., engage in work without reporting their time, absent on-site supervision.  In the work-from-home context, where the ability of employers to monitor an employee's activity is limited, allegations of violations of federal and state wage and hour laws for such off-the-clock work may prove more difficult to refute than those brought by employees who work at an employer site under direct supervision.  Given this reality, it is important for employers to have specific, well enforced wage and hour policies governing work-from-home employees. 


Privacy and Data Security Concerns Arising from Telecommuting


            In addition, employees who do work from home are most likely able to do so via remote electronic access to the employer's network, which can raise  a whole host of concerns over the privacy and security of personal information and confidential company information that the employee may be able to access remotely: 


·        Whether the remote access to the employer's network will be made via secure connection, which decreases the risk of a security breach while information is in transit, and whether employees will be able to download files directly to their personal computer, reducing the employer's ability to protect the security of those files. 

·        Whether the employee will be using a company-issued computer or a personal computer.  Employee-owned computers increase security risks because the employer has limited ability to monitor the software on the computer and restrict user access.  For example, a personal computer might contain third-party data sharing software that could access company information that has been downloaded to the computer.  Moreover, employers have limited ability to ensure that other home users of an employee-owned computer would not be able to access company files if, for example, the remote connection is left open.  Either situation could trigger notice obligations under state data breach notification statutes if covered personal information is accessed or acquired by an unauthorized person.

·        Whether necessary files and data can be transferred only via a secure network or whether portable media, such as thumb drives, will also be permitted for file and data transfers, and if so, what level of security, such as encryption and password protection, will be required.  The shrinking size of portable media provide greater freedom, flexibility, and mobility, but also pose greater risk of loss or theft due to their diminutive size.

·        How to ensure the security of a work-from-home employee's workstation.  For example, will the screen be visible to others and how will the remote employee secure paper files? 


Employers will need to develop and implement both administrative mechanisms, such as clear policies that put employees on notice of their rights and responsibilities, and operational mechanisms, such as implementing encryption and monitoring technology and other electronic security measures, that balance the need to preserve confidentiality and maintain security while allowing for the flexibility and mobility the employer's off-site employees' need.


Workplace Safety Issues and Liabilities Arising from Telecommuting


            Further, although telecommuters are not at the workplace, employers must still be concerned with workplace safety issues.  Workers compensation laws, OSHA and other workplace safety regulations can still apply to remote employees, so employers must develop ways to ensure that work-from-home employees comply with relevant safety protocols even in their home offices.  Although OSHA has announced that it will not conduct inspections of employees' home offices, and does not expect employers to conduct inspections, the agency will hold employers responsible for injuries or hazards at remote locations, including home offices, if they are caused or created by materials, equipment, or work processes that the employer provides or requires the employee to use at the remote location.  As well, OSHA will conduct inspections of home-based work sites when it receives a complaint or referral that indicates a violation of a safety or health standard that threatens physical harm.   Most state workers' compensation laws, including New York, are not limited to work related injuries that occur at the employer's fixed physical location, and therefore can apply to work-related injuries occurring at a home office or other work location.  The employee will still have to establish that the injury arose out of and in the course of employment, and not during a break or other non-work related activity. 


            Another recent area of liability, brought about by the technologies that have helped expand the mobile workforce, stems from injuries and damages caused by employees texting and talking while driving.  For example, in Bustos v. Dyke Industries Inc., Miami Dade Case No. 01-13370 (2001), an employer settled for over $16 million, after a jury initially awarded over $21 million in damages to an elderly woman who was hit and severely disabled by a salesman who was making a work related call on his cell phone while driving, resulting in the accident.  Again, due to the lack of on-site supervision, employers should, at minimum, enact clear policies on workplace safety issues that consider the particular circumstances of remote employees.    


            There may certainly be other concerns associated with remote employees in particular industries, and the issues noted above are but a sample of the concerns that telecommuting can raise.  Given the recent trend towards telecommuting, and the Second Circuit's decision clarifying that, in certain circumstances, it can be required as a reasonable accommodation, employers should take the opportunity to review their own telecommuting policies and procedures and consider the various issues that may arise when their own employees work from home or other remote locations. 


            This post was authored by Matt Lampe, Joseph Bernasky, David Krieger, and Mariya Nazginova of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

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April 10, 2012


On February 29, 2012, the New York State Senate passed Bill S60631-2011, which would eliminate the annual notice requirement under the New York State Wage Theft Prevention Act, which we discussed in a prior post.  The Bill does not add text to the Wage Theft Prevention Act, and keeps intact the notice requirements for new hires, but deletes the language regarding the requirement that such notices be provided "on or before February first of each subsequent year of the employee's employment with the employer...." 

The Bill was introduced by Senator DeFrancisco on January 4, 2012.  The Senate Memo summarizing the Bill explains, as its justification, that the annual notice requirement "imposes a new administrative cost on every private sector employer in the state, with aggregate costs in the millions of dollars, and will do little to improve overall compliance with the state's wage laws. The Department of Labor has conceded that wage compliance is an issue for only a small percentage of New York State employers, despite the universal application of this annual notice requirement. This type of annual notification requirement should be reserved for instances where non-compliance has been an issue, however, as an across the board measure, it will add costs and provide little if any additional benefit.  Moreover, this modification to the WPTA leaves in place its most significant reforms intended to assure payment of all wages earned by employees."

Now that the Bill has passed the Senate, it has been delivered to the Assembly, where an identical bill (A08856) is pending, and if passed by the Assembly, will be presented to the Governor for signature.  New York employers should stay tuned for further developments on this Bill. 

This post was authored by Matt Lampe and Joseph Bernasky of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association. 

November 8, 2012

New Categories of Permissible Wage Deductions Take Effect

Effective November 6, 2012, amendments to the New York Labor Law Section 193 ("Section 193") authorize a host of new permissible wage deductions from employee paychecks.  Bill A10875-2011 passed the New York State Legislature on June 21, 2012, and was signed into law by Governor Cuomo on September 7, 2012.  Governor Cuomo's "Statement in Support" of the bill noted that employers' inability to make deductions for valuable services provided to employees is "disadvantageous to both employers and employees."  Since 1966, New York employers have been prohibited from making any deductions from employee paychecks, subject to a limited number of exceptions. 


The recent amendments are a welcome change for New York employers, as state courts and the New York Department of Labor ("NYDOL") Opinion Letters have consistently taken a narrow approach to the deductions enumerated in Section 193.  Prior to the new amendments, New York law permitted deductions under only two circumstances: (1) as otherwise authorized by law (e.g., tax withholdings or Medicare contributions); and (2) the narrow, statutorily enumerated deductions in Section 193 (e.g., charitable organizations, labor organization dues, insurance premiums, and retirement contributions).


The newly permissible deductions are numerous and include, but are not limited to, the following: parking passes or mass transit vouchers; gym membership dues; certain purchases made by the employee, such as cafeteria or vending machine purchases at the employer's place of business; tuition, room and board fees; and day care expenses. 


Additionally, the new amendments allow employers to make deductions to recover an overpayment of wages that is due to mathematical or other clerical errors, and to recoup salary or wage advances.  Wage deductions related to overpayments and repayments of wages must comply with additional regulations promulgated by the NYDOL (addressing, e.g., the timing, frequency, duration, method of recovery, heightened notice requirements, and implementation of an employee-dispute system). 


New York employers should carefully review the new law as there are several notice requirements that must be fulfilled prior to making any deductions from employee wages.  For example, employers must provide employees with written notice of the terms and conditions of the payments and benefits, and other relevant details pertaining to how deductions will be taken.  Also, employees must provide their employer with a voluntary, written authorization, which may be freely revoked.  These written authorizations must be kept on the employer's premises throughout the employment relationship, and for an additional six years following conclusion of the relationship.  Employees can also authorize wage deductions through a collective bargaining agreement. 


Notably, if no further legislative action is taken, these amendments to the law will expire on November 6, 2015.  As additional requirements may be promulgated from time to time by the NYDOL, employers should continue to closely monitor the legislation's post-enactment activity.


This post was authored by Matt Lampe, Emilie Hendee, and Michele Bradley of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

January 26, 2013

New York City Council Votes to Amend Human Rights Law to Include "Unemployment" as Protected Classification; Veto and Override Expected

On Wednesday, January 23, 2013, the New York City Council passed a bill amending the City's Human Rights Law to prohibit employment discrimination based upon an employee or applicant's "unemployment status." It defines "unemployment status" as "an individual's current or recent unemployment." Under the amendment, however, an employer is not precluded from considering unemployment status data that is substantially job related where it has a bona fide reason for doing so. Nor is an employer barred from inquiring as to prior terminations or demotions, including whether such action was taken for cause.

The amendment also addresses the advertisement of job vacancies by proscribing the inclusion of any statement that being currently employed is a job requirement or that unemployed applicants will not be considered.

It has been reported that Mayor Michael Bloomberg plans to veto the bill. In response, City Council Speaker Christine Quinn was quoted saying that should Bloomberg veto it, she is confident she has the votes to override him.

July 9, 2013

The New York City Council Overrides Mayor Bloomberg's Veto of the Earned Sick Time Act By A 47 To 4 Margin

On June 26, 2013, the New York City Council (the "Council") voted 47-4 to override Mayor Michael Bloomberg's veto and adopt the New York City Earned Sick Time Act (the "Act"). The Act will require employers with 20 or more employees to begin providing paid sick leave on April 1, 2014. Employers with 15 to 19 employees would be required to provide paid sick leave starting October 1, 2015. These dates could be delayed depending on economic conditions, as measured against the New York Coincident Economic Index, a Federal Reserve Index that measures the New York City economy.

The Act entitles employees to up to five paid sick days (40 hours) annually, which will accrue at the rate of one hour for every thirty hours worked. Employees can begin to use accrued paid sick time after they have been employed for at least 120 days or 120 days after the Act goes into effect, whichever is later. Both part-time and full-time employees are covered, so long as they are employed more than 80 hours in a calendar year. At the end of the year, the employer must either allow the employee to carry over unused accrued paid sick time to the following year (subject to the 40 hour maximum) or pay the employee for the unused accrued paid sick time. Employers are not required to reimburse employees for unused accrued paid sick time upon the employee's termination, resignation, retirement, or other separation from employment.

Employees are entitled to use sick time for absences due to (1) the employee's mental or physical illness, injury or health condition, need for medical diagnosis, care or treatment, or need for preventative medical care; (2) care of a family member needing such medical diagnosis, care or treatment; or (3) closure of the place of business due to a public health emergency or to care for a child whose school is closed due to a public health emergency.

Employees working for employers with less than fifteen employees will be entitled to up to five days of unpaid, job-protected leave once the Act becomes effective. The Act also imposes sick leave requirements on employers of domestic workers. The Act will not apply to any employee covered by a collective bargaining agreement that expressly waives the Act's provisions or provides for comparable benefits. Any employer with a paid leave policy that provides an amount of paid leave sufficient to meet the accrual requirements of the Act is not required to provide additional paid sick time.

The Act mandates that employers retain records documenting the number of hours worked by employees and sick time accrued and taken by employees for a period of at least two years. Employers are required to provide employees with written notice of their entitlement to paid sick time and display a poster in a conspicuous location highlighting the rights guaranteed under the Act. Additionally, the Act includes non-retaliation provisions, which if violated can lead to monetary penalties and other forms of equitable relief.

The Department of Consumer Affairs (the "Department") is responsible for investigating and enforcing the Act. The Department can impose civil penalties ranging from $500 to $1,000 per violation. The Department can also order the employer to pay penalties to the affected employee. For unlawful termination, the Department can award back pay and equitable relief (including reinstatement). Employees have no right to bring a private civil action for violations of the Act.

Employers should begin to consider what steps are necessary to comply with the Act in advance of the effective date. Even those employers who already provide paid leave will need to review existing policies to determine whether those policies meet the specific accrual requirements of the Act, as well as its unique coverage requirements (which extend protection to both part-time and full-time employees). Furthermore, employers will need to ensure compliance with the recordkeeping and notice requirements of the Act.

This post was authored by Matt Lampe, Wendy Butler, Emilie Hendee, and Joshua Grossman of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

October 4, 2013

Mayor Bloomberg Signs Law Expanding Protections for Pregnant Workers

On October 2, 2013, Mayor Bloomberg signed into law an amendment to the New York City Human Rights Law that expands protections for employees who need reasonable accommodations relating to pregnancy, childbirth, or related medical conditions (Bill No. 0974-2012), after the bill was unanimously approved by the New York City Council on September 24, 2013.  The law will take effect on January 30, 2014 (120 days after it was signed into law). 

The amended law will require most New York City employers to provide reasonable accommodations to pregnant women and those who suffer medical conditions related to pregnancy and childbirth.  The text of the amended law includes examples of reasonable accommodations that might be required, such as "bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor."  Consistent with existing law, a reasonable accommodation does not include accommodations that would cause "undue hardship" to an employer's business.

The law will apply to all businesses with four or more workers, counting both employees and independent contractors, thereby expanding protections that are already available under existing federal, state and local laws.  Employees who believe they have been discriminated against will be able to file a complaint with the New York City Commission on Human Rights or bring an action in court against their employer.

Employers will be required to provide written notice in a form to be determined by the NYC Commission on Human Rights of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions.  The notice must be provided to: (1) new employees at the commencement of employment; and (2) existing employees within 120 days after the effective date of the new law.  Such notice may also be conspicuously posted at an employer's place of business in an area accessible to employees.  The commission will conduct ongoing public education efforts to inform employers, employees, employment agencies, and job applicants about their rights and responsibilities under this law.

This post was authored by Matt Lampe and Emilie Hendee of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

October 30, 2013

Jersey City Enacts Ordinance Requiring Paid Sick Leave

Under a recently enacted ordinance, businesses in Jersey City, New Jersey with ten or more employees will be required to provide paid sick leave effective January 24, 2014. Under the ordinance, private-sector employees will earn one hour of paid sick time for every thirty hours worked, up to forty hours per year. Sick leave accrual will begin on an employee's first day of work, but will not be available for use until the employee has completed ninety days of employment. Unused paid sick leave will be carried over from year to year. An employer, however, may cap the carry-over at forty hours and limit the usage of paid sick leave to forty hours per calendar year.

Paid leave offered under an employer's existing policy will be counted towards satisfying the requirements of this ordinance provided such paid leave may be used for the same purposes and under the same conditions as paid sick leave under the ordinance. Employees, under the ordinance, may use paid sick leave for their own health needs or those of a family member (i.e., spouse, civil union partner, domestic partner, child, parent, sibling, or grandparent). Paid sick leave may be used in the smaller of hourly increments or the smallest increment used by the employer's payroll system to account for absences or use of other time. Employees may not be compelled to find a replacement to cover their hours as a condition of taking paid sick leave. An employer may require medical verification for an absence of more than three days.

Employees of businesses with less than ten employees will accrue unpaid sick leave at the same rate and subject to the same terms as conditions of usage as applicable to the accrual of paid sick leave by employees at covered businesses.

February 7, 2014

New Tax Credit is Now in Effect for Eligible New York Employers of Student Employees Who Earn Minimum Wage

On January 1, 2014, the newly created minimum wage reimbursement tax credit went into effect and could result in significant tax reductions for some New York employers.  The tax credit allows eligible employers to receive a refundable credit on their New York state taxes for hours worked by student employees paid the minimum wage.  The credit is in effect from 2014 until 2019.  On December 30, 2013, the New York Department of Taxation and Finance released Technical Memorandum TSB-M-13(8)C, (7)I to provide guidance on the credit.  The Memorandum outlines who qualifies as an eligible employer and an eligible employee, the amount of the credit, and limitations on the credit.

Eligible Employers: An employer or business owner is eligible for the tax credit if the employer is "a corporation (including a New York S corporation), a sole proprietorship, a limited liability company, or a partnership" and the employer or owner is subject to one of the following taxes: franchise tax on agricultural corporations organized and operated on a cooperative basis (Article 9 § 185); franchise tax on business corporations (Article 9-A); personal income tax (Article 22); franchise tax on banking corporations (Article 32), or franchise taxes on insurance corporations (Article 33).  

Eligible Employees: An employee's work hours may count toward the tax credit if the employee is (1) employed in New York by an eligible employer; (2) paid at the New York minimum wage rate by the eligible employer for at least part of the tax year; (3) at least 16 but under 20 years of age; and (4) a student during the period of time they are paid at the minimum wage rate.

"Students" include employees that are attending secondary school and most post-secondary schools located inside or outside New York State.  Qualifying schools include "any institution that offers a program of training to prepare students for gainful employment in a recognized occupation such as trade, technical, and vocational schools" but not "correspondence schools, schools offering courses only through the Internet, or on-the-job training courses."  Work done during scheduled school breaks still qualifies for the credit if the employee will return to school. 

Importantly, employers are required to obtain documentation of student status and be prepared to make the documentation available to the New York Tax Department upon request.  Adequate documentation could be "a student's identification card, a student's current or future course schedule issued by the school, a letter from the student's school verifying his or her current or future enrollment, or working papers" issued by the New York Department of Labor.

Credit Amount: Eligible employers and owners can take a tax credit at the rate of $0.75 per hour worked at the minimum wage rate by eligible employees for tax years starting in 2014.  The rate goes up to $1.31 for tax years starting in 2015 and $1.35 for tax years starting in 2016-2018.  However, these amounts will be reduced "if the federal minimum wage is increased to more than 85% of New York's minimum an amount equal to the difference  between New York's minimum wage and the federal minimum wage."

Limitations: The credit cannot reduce the tax below the minimum tax listed for taxpayers under Article 9 § 185, Article 9-A, Article 32, or Article 33.  But, for Article 22 taxpayers (personal income tax), the tax due may be reduced to zero.

Employers should note that this tax credit is not available if an ineligible employee is fired solely so the employer can hire an eligible employee.  Employers cannot use the same eligible employee as the basis for the minimum wage tax credit and another tax credit.  The minimum wage reimbursement tax credit is refundable, with any excess credit treated as a tax overpayment to be either credited or refunded without interest.

This post was authored by Matt Lampe, Emilie Hendee, and Laura Jean Eichten of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

August 1, 2014

State Lawmakers Pass Bill to Eliminate Annual Wage Notice Requirement

As of June 19, 2014, both the New York State Assembly and the New York State Senate voted to pass a bill (A08106C / S05885-B) to amend the New York Wage Theft Prevention Act to eliminate the annual wage notice requirement (the "Bill").  The Bill will become law if signed by Governor Andrew Cuomo. 

Under the current law, New York employers are required to provide all employees with an annual wage notice before February first of each year, which includes information about the employee's rate of pay and the employer.  The Bill would eliminate this annual notice requirement for employers as long as the same information is provided at the time of hire. The Bill does not change the existing requirements to provide wage notices at the time of hire and/or where changes to employee pay are made.  

In addition to eliminating the annual wage notice requirement, the Bill would increase penalties for certain violations of the New York wage law.  Specifically, employers who fail to provide a wage notice within ten business days of a new employee's first day of work, or fail to provide a wage statement as required by the law, would incur damages of $50 per day (previously $50 per week), up to a total amount of $5,000 (previously $2,500).  An employer who is found to have retaliated against an employee in violation of the wage law could incur a civil penalty of up to $20,000 (previously $10,000). 

Additionally, the bill requires employers who have previously committed wage theft, or whose violation is willful or egregious, to report certain employee and wage data to the Commissioner of Labor to be published online.  The bill makes clear, however, that employers should not report or otherwise disclose individual identifying information of employees.  The bill makes it harder to avoid liability via restructuring by making "an employer similar in operation or ownership to a prior employer who had previously committed wage theft" liable for acts of the prior employer.  It also places increased burdens on contractors found liable for wage violations and sets up a Wage Theft Prevention Enforcement Account to help fund the administration and enforcement of the Wage Prevention Theft Act.

Employers should monitor the Bill and, if and when it is signed by Gov. Cuomo, take steps to adjust their payroll practices accordingly.  

This post was authored by Matt Lampe, Emilie Hendee, and Laura Jean Eichten of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association. 

October 19, 2014

New York City Council Considers Legislation Limiting Inquiries into Applicants' Criminal and Credit Histories

Currently pending before the New York City Council (the "Council") are two bills that could significantly affect hiring processes utilized by New York City employers.  The proposed Fair Chance Act and the Stop Credit Discrimination in Employment Act would restrict what employers may inquire about regarding job applicants' criminal and consumer credit histories.  If passed, the bills would require employers to review and potentially revise their hiring practices, including the use of criminal background searches and credit checks. 


Introduced in April 2014, the Fair Chance Act (the "FCA"), which has been described as "ban-the-box" legislation, would amend the New York City Human Rights Law (the "NYCHRL") to prevent pre-employment inquiries into an applicant's conviction or arrest history.  The New York Correction Law § 23-A currently requires employers to conduct a multi-factor analysis before refusing to hire an applicant based on his or her criminal history.  This analysis considers, among other things, any bearing the criminal offense would have on the applicant's fitness or ability to perform the duties related to the position, the time that has elapsed since the offense, the applicant's age at the time of the offense, the seriousness of the offense, any information produced on behalf of the applicant relating to his or her rehabilitation and good conduct, and the employer's legitimate interest in protecting property and the safety and welfare of specific individuals or the general public.  The employer may only refuse to hire an applicant based on his or her criminal conviction if there is a direct relationship between the prior criminal offense and the specific job sought, or if hiring the individual would pose an unreasonable risk to property or others' safety.


The FCA extends these protections by requiring that employers first deem an applicant qualified for a job and make a conditional job offer before inquiring into an applicant's criminal history or conducting any criminal history search.  The bill defines "inquiries" to include questions in a job application or in a standalone document, searches of publicly available records or consumer reports, or even mentioning that a background check will be required.  However, employers who are legally required to conduct a criminal history search may inform applicants that the job is subject to a background check and that the employer is prohibited from employing individuals with certain criminal convictions.


The FCA also provides that if an employer intends to take an adverse employment action based on a criminal inquiry, it must provide the applicant with a written copy of the criminal inquiry and the multi-factor analysis the employer is required to conduct.  The applicant must then be provided a minimum of seven business days to respond, during which time the position must remain open.  Once the response time has lapsed, the employer no longer needs to wait for an answer.  An employer who violates these new requirements could be liable for a minimum of $1,000 in damages and is presumed to have engaged in unlawful discrimination, which can only be overcome with "clear and convincing evidence" demonstrating otherwise.  Further, an applicant may not be disqualified from prospective employment based on a response to an unlawful inquiry or statement under the FCA.  Employees who claim that their rights have been violated under the FCA would be entitled to a private cause of action.


Also pending before the Council is the Stop Credit Discrimination in Employment Act (the "Act"), which would amend the NYCHRL to prohibit employers from requesting or using for employment purposes information contained in an applicant's consumer credit history or to retaliate or otherwise discriminate against an applicant based on the applicant's credit history.  The Act defines "consumer credit history" as "any information bearing on an individual's credit worthiness, credit standing, or credit capacity, including but not limited to an individual's credit score, credit account and other consumer account balances and payment history."  However, the Act would not apply to employers that are required under state or federal law to use an individual's consumer credit history for employment purposes.


Employers should monitor the Council's legislative activity on both bills and, if they are passed, review and revise hiring policies and practices.


This post was authored by Matt Lampe, Emilie Hendee, and Sharon Cohen of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

March 3, 2015

UPDATE: Bill Eliminating New York's Annual Wage Notice Requirement Takes Effect

On February 27, 2015, 60 days after Governor Cuomo signed it, a bill (A08106C / S05885-B) became effective that amends the New York Wage Theft Prevention Act to eliminate the annual wage notice requirement.  This means that moving forward, employers do not have to distribute annual wage notices to all employees.


The newly-effective law also increases penalties for certain violations of the New York wage law.  More details on these changes can be found in our previous post by clicking here.  Employers should evaluate any revisions that might be needed to their practices in light of this amendment.  


This post was authored by Matt Lampe, Emilie Hendee, and Laura Jean Eichten of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.


May 1, 2015


Keeping in line with the national trend, New York lawmakers in Albany have proposed two significant raises to statewide minimum wage requirements, which will go into effect as early as December 31, 2015.

First, in his State of the State Address on January 28, 2015, Governor Andrew Cuomo proposed an increase to the state's minimum wage, which would raise it to $10.50 per hour by the end of 2016. An even higher hourly minimum wage of $11.50 was suggested for employees in New York City, to reflect the higher cost of living in the metropolitan area. This proposal functions as a compromise to exasperated New Yorkers without overturning longstanding precedent that prohibits municipalities in New York State from setting local wages above the state minimum. See Wholesale Laundry Board of Trade, Inc. v. New York, 17 A.D.2d 327, 329-30 (1st Dep't 1962).

Second, on February 24, 2015, the New York State Commissioner of Labor Mario J. Musolino adopted resolutions set forth by the Department of Labor's Wage Board that will significantly increase the wages and rights of tipped workers across the state. Most prominent among these was the resolution to increase the minimum wage for tipped employees to $7.50 per hour, effective December 31, 2015, and $8.50 per hour for tipped workers in New York City, contingent upon the State Assembly's adoption of a distinct wage for the City. Commissioner Musolino also adopted a recommendation to eliminate distinctions between tipped workers within the hospitality industry. Effective December 31, 2015, food service employees, service employees, and service employees in resort hotels will be treated equally under the Labor Law. The Commissioner rejected the Wage Board's recommendation that employers of tipped workers should be subject to enhanced tip credits, citing incongruity with the Wage Board's desire to simplify the regulations and rejecting the underlying assumption that tip allowances are a penalty rather than a substantive right to pay.

If and when these changes go into effect, New York State and New York City will become leaders in the nationwide Living Wage movement. The current statewide minimum wage is $8.75 per hour, and is set to increase to $9.00 per hour on December 31, 2015.

"Written by Kerry C. Herman, Associate at Sapir Schragin LLP. The views and opinions expressed herein are the author's own and do not reflect those of Sapir Schragin LLP."

November 20, 2015

Governor Cuomo Signs Amendments to Equal Pay and Human Rights Laws

On October 21, 2015, New York Governor Andrew Cuomo signed legislation amending New York State's Human Rights Law and New York Labor Law to expand protections available to employees.  The amendments will become effective January 19, 2016. 

New York Equal Pay Law

New York's equal pay law (N.Y. Lab. Law §§ 194, 198), which currently allows employers to justify a pay difference between employees of opposite genders based on a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or "any other factor other than sex," has been amended in three ways.  First, the new law (S.1/A.6075) removes the last permissible basis for differentiation, replacing it with narrower language that allows a pay differential to be based on "a bona fide factor other than sex, such as education, training, or experience."  Under the amended law, a "bona fide factor" cannot be based on a "sex-based differential in compensation" and must be "job-related with respect to the position in question" and consistent with business necessity.  An employee may challenge a "bona fide factor" defense by showing that the employer's practice causes a disparate impact on the basis of sex, that an alternative practice exists that would serve the same business purpose, and that the employer has refused to adopt the alternative practice.

Second, the bill bans employers from retaliating against employees for discussing their wages with one another.  Employers may, however, establish reasonable time, place and manner prohibitions on such discussions, such as "prohibiting an employee from discussing or disclosing the wages of another employee without such employee's permission."  This retaliation prohibition and the new "bona fide factor" exception closely follow language in the so-called "Paycheck Fairness Act," a long-proposed amendment to the federal Equal Pay Act.

Third, the bill provides for additional "liquidated" damages of up to 300% of the wages due in cases where an employer is unable to prove that it acted in good faith when violating the law.  This is a significant increase from the current version of New York's equal pay law, which, like the federal Equal Pay Act, only provides for liquidated damages of up to 100% of wages due. 

New York Human Rights Law

The New York State Human Rights Law has been amended in four ways.  First, S.2/A.5360 amends N.Y. Exec. Law § 292 to allow sexual harassment suits against employers regardless of the number of employees employed by the company.  Under existing law, employers with fewer than four employees are excluded from the definition of "employer."  This amendment creates a limited exception to this definition for sexual harassment suits. 

Second, S.3/A.7189 amends N.Y. Exec. Law § 297 to  grant courts and the state Commissioner of Human Rights the discretion to award reasonable attorneys fees to the prevailing party in claims of employment or credit discrimination on the basis of sex.  Under existing law, attorneys fees may only be awarded in housing discrimination cases.

Third, S.4/A.7317 amends N.Y. Exec. Law § 296 to prohibit employment discrimination on the basis of "familial status."      

Fourth, S.8/A.4272 amends N.Y. Exec. Law §§ 292 and 296 to require reasonable accommodations for employees with a "pregnancy-related condition."  The amendment defines the term "pregnancy-related condition" as "a medical condition related to pregnancy or childbirth that inhibits the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques."  The term is limited, however, to conditions that may be reasonably accommodated without preventing the complainant from performing in a reasonable manner the activities associated with the job in question. The term "reasonable accommodation" is defined to exclude actions that would "impose an undue hardship" on the employer.  The amendment also requires employees seeking an accommodation for their disability or pregnancy-related accommodation to cooperate in providing medical and other information necessary to verify the disability or pregnancy-related condition or for the consideration of the accommodation.

Employers should evaluate their current workplace policies to ensure they are consistent with these amendments. 

This post was authored by Matt Lampe, Emilie Hendee, Michael Casertano, and Michael Ferruggia of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association. 

January 2, 2017

NY Employers Should Be Aware of Recently Adopted Changes to Salary Threshold For NY Overtime Exemptions

On December 28, the New York State Department of Labor adopted regulations that will increase the salary threshold for exempt employees. As a result, many more employees in New York (i.e., those who will no longer meet the new salary threshold) will become eligible for overtime pay.

The amount of the increase varies by region and by the size of the employer and will gradually increase over time. In New York City, for employers with 11 or more employees, the new salary threshold will be $825 per week on and after December 31, 2016; $975 per week on and after December 31, 2017; and $1,125 per week on and after December 31, 2018. For small employers with employees in New York City, and for employers with employees outside New York City (but within New York State), the increases are smaller and phase in over a longer period. For example, for upstate employees, the new salary threshold will be $727.50 per week on and after December 31, 2016, and will gradually increase each year until it reaches $937.50 per week on December 31, 2020.

Importantly, this change in New York law will become effective without regard to the fate of the federal regulations that were scheduled to go into effect on December 1, 2016. Those regulations, which were enjoined by a federal court in the Eastern District of Texas, would have increased the federal salary threshold for white collar employees from $455 per week to $913 per week.

The changes in the New York salary threshold could very well take employers by surprise, since the regulations were published with little fanfare. The New York Department of Labor published the rule to comply with a 2016 law that increased minimum wage rates for nonexempt employees in New York. Although that law did not specifically call for increases to the salary threshold for exempt employees, the law instructed the Department of Labor to revise its wage orders "to increase all monetary amounts specified therein in the same proportion as the increase in the hourly minimum wage as provided in this [section]." The law further provided that the changes could be promulgated by the DOL without public hearing and without reference to a wage board, and that such changes "shall become effective on the effective date of such increases in the minimum wage ...."

The upshot of these changes is not intuitive and requires a close examination of New York's wage orders. For employers covered by the Miscellaneous Wage Order, there are two different overtime rates. One overtime rate, applicable to employees who are entitled to overtime under the Fair Labor Standards Act ("FLSA"), is calculated as 1.5 time the employee's regular rate. The other overtime rate, applicable to employees who are not entitled to overtime under the FLSA, but are entitled to overtime under New York law, is calculated as 1.5 times the New York minimum wage, which may very well be lower than the employee's regular rate.

Take, for example, an employee in New York City who earns $800 per week and works for a large employer. As of December 31, 2016, that employee will meet the salary threshold for the federal exemption (assuming the injunction is not lifted), but will not meet the salary threshold for the New York exemption. Thus, the employee, if he or she satisfies the duties test for exemption, will be exempt from federal overtime. But the employee will be below the salary threshold for New York, and thus must receive 1.5 times New York minimum wage for hours worked over 40 in a week. In New York City, the minimum wage for large employers will be $11 per hour as of December 31, 2016. So this employee's overtime rate will $16.50 (which is 1.5 x $11). While the overtime pay for such an employee could be significant, it would be less than what would be required under federal law if the employee were overtime eligible under federal law. Federal overtime would be $30 an hour, which is 1.5 times the employee's hourly rate of $20.

Employers subject to the Hospitality, Fast Food, and/or Building Service wage orders should consult the provisions of the applicable wage order, which may vary from the provisions described above. For instance, employers covered by the Hospitality Wage Order must pay overtime at 1.5 times the regular rate to all overtime-eligible employees, and cannot take advantage of the lower rate (1.5 times minimum wage) described in the above example.

Another compliance challenge arises due to the regional variation in salary thresholds. An employee who works in New York City some weeks, but travels upstate in other weeks, may satisfy the exemption test when working upstate, but loose exempt status while working in New York City because of the higher salary threshold applicable in New York City. The New York Department of Labor has issued guidance indicating that in such situations, the employer can increase the employee's salary in weeks the employee works in a higher salary threshold region to avoid paying overtime.

This post was authored by Matt Lampe and Wendy Butler of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

January 4, 2017

New York City, State Consider Bans on Salary History Inquiries

New York City is poised to adopt legislation that would prohibit employers from asking about a prospective employee's salary history and New York State may follow suit, reflecting an emerging trend in cities and states across the country.

Pending before the New York City Council (the "Council") is Intro. No. 1253, which would amend the New York City Human Rights Law to make it an unlawful discriminatory practice for an employer to ask a prospective employee about salary history, search publicly available salary records for that information, or rely on a prospective employee's salary history in determining salary amount "at any stage in the employment process." The bill, which was introduced by Public Advocate Letitia James in August 2016, would allow an employer to rely on salary history, however, if the applicant "unprompted, willingly disclosed such salary history to such employer" and would exempt employers who are authorized to ask about or verify salary information pursuant by federal, state, or local law. The exact provisions of the bill, however, are subject to amendment prior to adoption.

Intro No. 1253 already has the support of 35 of the Council's 51 Members, who have signed on as co-sponsors. Mayor Bill de Blasio has also expressed his intent to support for the bill. Mayor de Blasio implemented similar restrictions on city agencies in November through an Executive Order. Moreover, at a December, 13, 2016, committee hearing on the bill, the New York City Commission on Human Rights endorsed Intro No. 1253, lauding the bill as having the potential to close gender and racial wage gaps.

At the state level, Senator Brad Hoylman introduced similar legislation on January 4, 2017. S. 24 would amend the New York State Human Rights Law by making it an unlawful discriminatory practice for an employer to seek the salary history of a prospective employee for an interview or as a condition of employment. Because this bill was just introduced, its prospects are uncertain at this point.

These proposals reflect an emerging trend in state and local legislatures to restrict salary history inquiries by employers. On August 1, 2016, Massachusetts became the first state to ban employers from asking for an applicant's salary history prior to extending an offer with compensation. Enacted as part of an amendment to the state's equal pay act, S.B. 2119 will take effect on July 1, 2018. Likewise, on December 8, 2016, the Philadelphia City Council passed a law making it an unlawful employment practice for an employer to inquire about an applicant's wage history, retaliate against an applicant for failure to disclose such history, or rely on the applicant's wage history in determining salary at any stage in the employment process. The Philadelphia law will take effect 120 days after it is signed. Legislators in the District of Columbia and New Jersey introduced similar bills in September 2016, and there is also a federal bill, H.R. 6030, pending in the House of Representatives.

The push to prohibit salary history inquiries follows a series of campaigns that have resulted in the enactment of paid sick leave laws and laws restricting the use of criminal background and credit histories in New York City and in other state and local jurisdictions. Collectively, these measures are a reminder that employers must remain cognizant of developments in state and local employment laws, which can be significantly more restrictive than their federal counterparts.

This post was authored by Matt Lampe, Michael Casertano, and Jacqueline Bechara of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

February 28, 2017

NYC Council to Consider Flexible Scheduling Legislation

New York City employers would be required to entertain employee requests for flexible work arrangements, among other requirements, under proposed legislation before the New York City Council (the "Council"). The Council's Committee on Civil Service and Labor (the "Committee") will conduct a hearing on the proposed legislation, along with five other bills, on March 3, 2017.

Specifically, Introduction No. 1399 would require employers to respond in writing within 14 days to employee requests for a flexible work arrangement - defined as "a work structure that alters the employer's regular terms and conditions of employment with respect to work schedule, duties or location" - and to engage in a good faith, interactive process "to assess the feasibility of a request for a flexible work arrangement to meet the employee's needs." Employers would be required to consider whether the request is "inconsistent with business operations" and to provide the rationale for any denial in writing to the requesting employee.

The proposed interactive process borrows from the requirements for considering requests for accommodations under the Americans with Disabilities Act and its state and local counterparts.

Int. No. 1399 defines flexible work arrangements to include such accommodations as modified work schedules, additional shifts or hours, changes in days of work, changes in work start and end times, permission to exchange work shifts with other employees, limitations on availability, part-time employment, job sharing arrangements, work from home or another location, reductions or changes in work duties, and reductions or changes in on-call shifts.

The bill would entitle employees to no more than one request for a flexible work arrangement per quarter.

Int. No. 1399 would also require employers to provide new hires "expected to work hours on a schedule" with a work schedule in writing reflecting the number of hours, times, and locations that the employee is expected to work.

Finally, the bill would require employers to grant employees temporary one-day changes in schedules for certain personal emergencies up to four times in a calendar year. Such circumstances include caregiving emergencies, personal health emergencies, or situations relating to the employee or a family member having been the victim of a family offense matter, a sexual offense, or stalking.

Employers would be prohibited from retaliating against employees exercising their rights under the bill.

Mayor de Blasio has not yet taken a position on Int. No. 1399.

The Committee will hear Int. No. 1399 with five bills addressing employee scheduling and other issues in the retail and fast food sectors. Unlike the other legislation being considered, however, Int. No. 1399 would be broadly applicable to employers in all sectors in New York City.

Collectively, the remaining bills would prohibit the practice of on-call scheduling and impose certain predictable scheduling requirements on retail and fast-food establishments, prohibit so-called "clopening" shifts (back-to-back shifts spanning two days) in the fast food sector, require fast-food employers to offer additional hours to existing employees before hiring additional workers, and require fast-food employers to process payroll deductions for donations to non-profit organizations. These remaining bills reflect a conglomeration of certain "fair workweek" proposals announced by Mayor Bill de Blasio in September 2016 as well as bills proposed by individual Council Members without Mayor de Blasio's express support.

The New York City legislation reflects a growing trend by municipalities to address workplace scheduling, including ordinances enacted in San Francisco, Seattle, and Emeryville, CA. Legislation has also been introduced in Massachusetts, San Jose, CA, Minneapolis, MN, and Washington, D.C.

This post was authored by Matt Lampe, Martin Schmelkin, Michael Casertano, Remo Decurtins, and Jacqueline Bechara of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association

April 3, 2017

NYC Poised to Ban Salary History Inquiries

On April 5, 2017, the New York City Council (the "Council") will vote on legislation to prohibit employers from inquiring about the salary and benefits histories of job applicants. The Council's Civil Rights Committee held a hearing on an earlier draft of the bill in December 2016. Following a Committee vote on the amended bill on April 4, 2017, the full Council is expected to pass the legislation with Mayor Bill de Blasio's support.

Introduction Number 1253-A would prohibit employers from inquiring about the salary history of an applicant or from relying on an applicant's salary history in determining compensation. The amended bill defines "to inquire" broadly to include questions to the applicant, the applicant's current or former employer, or current or former agents of such applicant's current or former employer. It also includes conducting searches of publicly available records, but does not prohibit employers from informing applicants about the proposed or anticipated salary or salary range.

The amended bill also defines "salary history" broadly to cover all wages and benefits, but does not preclude employers from making inquiries regarding objective measures of productivity, such as revenue or sales.

As with the original draft of the bill, the amended bill allows employers to consider an applicant's salary history where an "applicant voluntarily and without prompting discloses [such] salary history." Importantly, the amended bill also makes clear that an employer "may, without inquiring about salary history, engage in discussion with the applicant about their expectations with respect to salary, benefits and other compensation, including but not limited to unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant's resignation from their current employer." Additionally, an employer may verify an applicant's voluntarily disclosed salary history.

As amended, Intro. No. 1253-A does not apply to internal applicants for transfer or promotion.

If, as anticipated, the bill passes the Council and is signed by Mayor de Blasio, it will take effect 180 days thereafter, or roughly by the end of October 2017, depending on the exact date of the bill signing.

The New York City law reflects a growing trend in states and municipalities around the country, including an Executive Order signed by New York Governor Andrew Cuomo in January prohibiting state agencies from making salary inquiries.

This post was authored by Matt Lampe, Martin Schmelkin, and Michael Casertano of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

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