Publication

As they prepare to welcome the new year, New York employers should also prepare for new employment laws that recently came into effect or that will go into effect in 2018. Below is a review of recent labor and employment laws that will impact businesses throughout the State in 2018 (some of which only apply to New York City).

New York State Minimum Wage Increases

In 2016, Governor Cuomo signed into law a bill that increases the minimum wage in New York State gradually to $15.00 per hour over a five year period, under different schedules based on the size of an employer’s workforce and geographic location.  Effective December 31, 2017, the following minimum wage increases will take effect:

In addition, the following increase will be effective December 31, 2018:

Employers must ensure compliance with the minimum wage law and implement salary increases as needed.

New York State Paid Family Leave

Effective January 1, 2018, a majority of private employees in New York will be eligible for Paid Family Leave (“PFL”).  Through PFL, eligible employees will be entitled to eight weeks of paid time off in 2018, receiving 50 percent of their average weekly salary up to 50 percent  of the New York State average weekly salary.  By 2021, eligible employees will be entitled to 12 weeks of paid time off annually receiving 67 percent of their average weekly salary up to 67 percent of the New York State average weekly salary.  Those benefits are provided pursuant to insurance, for which employees will have payroll deductions.  PFL also entitles eligible employees to job protection and the continuation of health insurance benefits while on leave.  Employees whose weekly work schedule is 20 hours or more will become eligible for PFL after 26 weeks of employment.  Employees who work less than 20 hours per week will become eligible after 175 days worked.  There is also a potential opt-out for employees who do not expect to ever reach eligibility.

PFL is available in three instances:  (1) for bonding time when an employee becomes a parent following the birth, adoption, or fostering of a child; (2) to care for the employee’s spouse, domestic partner, child, parent, parent-in-law, grandparent, or grandchild who has a “serious health condition,” consisting of inpatient care or continuing treatment under the care of a health care provider; (3) where an employee’s spouse, domestic partner, child or parent is or will be on active military duty abroad and the employee must deal with obligations arising out of the call to duty.

To prepare for the implementation of PFL, employers should:

• Ensure they have PFL coverage through their current insurance policy.  As a general matter, PFL insurance will be added to an employer’s existing disability insurance policy; however, employers should confirm coverage with their insurance provider.
• Post a notice of PFL where it is easily visible to employees.  
• Update their employee handbook to include PFL information and circulate the applicable notice to their employees informing them of their rights and obligations under PFL.  
• Identify non-eligible employees and inform them of their right to waive coverage.
• Update their payroll processes to begin collection of employee contributions to pay for PFL insurance coverage.
• Ensure they have the appropriate forms for employees to use if they want to request PFL.  Forms (as well as certain notices) have been prepared by New York State and can be found at https://www.ny.gov/new-york-state-paid-family-leave/paid-family-leave-forms-employees-employers-and-insurance-carriers.

New York City Paid Sick Leave to Include “Safe Time”

On November 6, 2017, Mayor DiBlasio signed into law a bill that expands New York City’s paid sick leave requirements to cover “safe time.”  The law, Int. No. 1313-A, which takes effect on May 5, 2018, allows employees to use accrued sick leave when the employee or a family member has been the victim of a family offense matter, sexual abuse, stalking, or human trafficking. The law defines “family member” to include an individual related by blood or whose close association with the employee is equivalent to a family member, and includes a spouse, domestic partner, child (of the employee or the employee’s spouse or domestic partner), parent (same), sibling, grandchild, or grandparent.

The law requires New York City employers to provide written notice to employees of their rights under the law at the time of hire in English as well as in the employee’s primary language, to the extent a notice in that language is available through the New York City Department of Consumer Affairs.  By June 4, 2018, employers must provide employees working in New York City with notice of their right to safe leave, if they did not receive notice previously. In addition, after May 5, 2018, required notices must include notices to employees of their right to safe leave. 

New York City Salary History Ban

Effective October 31, 2017, New York City employers may no longer ask job applicants about their salary history.  The new law, which amends the New York City Human Rights Law, prohibits employers from inquiring about a job applicant’s prior salary, conducting background searches to obtain this information, or relying on the salary history of a job applicant to determine the applicant’s salary amount at any point during the hiring process.  The term “salary history” is defined broadly by the law and includes wages, benefits, and other forms of compensation.  The law was passed in an effort to eradicate pay inequities and discrimination against a job applicant by basing current wages on an applicant’s earning history.  Accordingly, any violation of the new law is deemed an unlawful employment practice.

While the new law is broad in scope, the law does permit employers to discuss with a job applicant the anticipated salary for the position applied for and the applicant’s salary expectations.  An employer may also discuss with an applicant whether he or she will be forfeiting equity or deferred compensation by taking the position.  An employer is not prohibited from considering an applicant’s salary history if the applicant discloses the information voluntarily and without being prompted to disclose the information.

If they have not done so already, New York City employers should review their hiring practices, as well as their employment application, to ensure that applicants are not asked about their salary history.

New York City Fast Food Laws

Earlier this year, the New York City Council and Mayor DiBlasio passed four laws that affect the fast food industry in New York City and require those employers to modify their scheduling, hiring, and payroll processes to ensure compliance with these new laws, which went into effect on November 26, 2017.  The term “fast food” refers to an establishment whose primary purpose is to supply food and drinks, offers limited service, where customers place and pay for their orders before consuming them – either at the establishment or as take out or delivery – and that is part of a chain of 30 or more establishments nationally (including franchises, even those owned/operated by different franchisees).

The first of these laws is Int. No. 1384, which allows fast food employees to make voluntary contributions from their salaries to authorized nonprofits.  In circumstances in which a fast food employee opts to make voluntary deductions, an employer must deduct these contributions from the employee’s paycheck and provide the funds to the designated nonprofit.

The second law is Int. No. 1388, which prohibits employers from scheduling fast food employees, without written employee consent, to work two consecutive shifts unless there are at least 11 hours in between the two shifts.  If an employee consents to work two consecutive shifts in less than 11 hours, they must be paid an extra $100 each time.

Third, Int. No. 1395 requires fast food employers to offer available shifts to currently employed part-time staff before hiring new workers.  The law mandates that employers post notices of the available shifts at work and send notices electronically to employees when new shifts become available.  The obligation to offer available shifts to current employees is only required up to the point at which the employer would be required to pay the employee overtime or until all current part-time employees have rejected the available hours.

Lastly, Int. No. 1396 requires fast food employers to provide new hires with a good faith estimate of their weekly work schedule at the start of their employment.  The law also mandates that they give existing staff their work schedules at least 14 days in advance.  In the event of a schedule change with less than 14 days notice, employees must be paid a premium between $10 and $75, depending on how much notice was given of the schedule change.

New York City Retail Law

In 2017, the New York City Council and Mayor DiBlasio passed Int. No. 1387, which impacts the retail industry.  The law, which came into effect on November 26, 2017, prohibits retail employers from scheduling an employee for on-call shifts.  In addition, the law prohibits retail employers from adding shifts to an employee’s schedule without at least 72 hours notice, absent written consent from the employee, or cancelling an employee’s shift within 72 hours of the shift’s start time, except in certain emergency situations.  These exceptions are limited to threats to the retail employees or the retail employer’s property, the failure of public utilities, the shut down of public transportation, the occurrence of a natural disaster, or a state of emergency declared by the U.S. President, the governor of New York or the New York City mayor.  The law also forbids employers from requiring employees to call in to confirm a shift less than 72 hours in advance.

For questions regarding any of the new or updated laws and changes, please contact the Employment Law practice group in Gordon Rees Scully Mansukhani's New York office at (212) 269-5500.

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About the authors:

Diane Krebs is a partner in the New York office. Ms. Krebs is a seasoned litigator and counselor who brings more than 23 years of experience to her client relationships. As a member of the Employment practice group, she has extensive experience in civil rights, labor and employment matters, including discrimination, harassment, retaliation, wrongful termination, defamation, civil service, equal pay, and wage and hour claims. Ms. Krebs represents companies, large and small, public and private, in labor and employment litigation before federal, state and local courts, agencies, mediators and arbitrators. Her litigation practice involves extensive interactions with clients, in-house counsel and administrative agencies, including counsel for the NYSDHR and the EEOC. Ms. Krebs also provides comprehensive counseling and advice to corporate owners, in-house counsel and human resources personnel on daily issues and personnel decisions that arise in the workplace, including litigation avoidance and/or minimization techniques, and conducts sensitivity and handbook training in house for all levels of employees.  Ms. Krebs can be reached at (212) 453-0707 or dkrebs@grsm.com.

Sandra Jimenez is an associate in the New York office of Gordon & Rees. Ms. Jimenez’s practice is focused primarily on defending employers in employment litigation matters. Ms. Jimenez is experienced in handling all aspects of litigation from pleadings through trial. She has defended employers in both state and federal employment matters involving various claims including retaliation, discrimination, and wrongful termination. Ms. Jimenez has also represented employers before administrative agencies and has participated in mediation. Ms. Jimenez can be reached at (212) 453-0737 or sjimenez@grsm.com.