Key 2022 Employment Law Updates for New York Employers

Wage and Hour: Minimum Salary Threshold to Classify Employees as Exempt from Overtime Requirements under the Executive and Administrative Exceptions

• For New York City employees, the minimum salary remains $1,125 per week.
• For employees located in Nassau, Suffolk, and Westchester counties, the minimum salary has increased from $1,050 to $1,125 per week.
• For employees throughout the remainder of the State, the minimum salary has increased from $937.50 to $990 per week.

Effective December 31, 2021

Wage and Hour: Minimum Wage Increase

• For employees in New York City, the minimum hourly rate remains $15.00 per hour.
• For employees in Nassau, Suffolk, and Westchester counties, the minimum hourly rate has increased from $14.00 to $15.00.
• For employees throughout the remainder of the State, the minimum hourly rate has increased from $12.50 to $13.20.

Effective December 31, 2021

Wage and Hour: Minimum Wage for Tipped Employees in the Hospitality Industry (businesses running a restaurant or hotel)

• Minimum wage for food service workers in Nassau, Suffolk, and Westchester counties has increased from $9.35 in cash with a $4.65 tip credit per hour, to $10.00 in cash with a $5.00 tip credit per hour.
• Minimum wage for food service workers throughout the remainder of the State (except New York City) has increased from $8.35 in cash with a $4.15 tip credit per hour, to $8.80 in cash with a $4.40 tip credit per hour.
• Minimum wage for service employees in Nassau, Suffolk, and Westchester counties has increased from $11.65 in cash with a $2.35 tip credit per hour, to $12.50 in cash with a $2.50 tip credit per hour.
• Minimum wage for service employees throughout the remainder of the State (except New York City) has increased from $10.40 in cash with a $2.10 tip credit per hour, to $11.00 in cash with a $2.20 tip credit per hour.

Effective December 31, 2021

New York Paid Family Leave: Elimination of 60-Day Cap on Intermittent Leave under New York Paid Family Leave Benefit Law (12 NYCRR 380-2.5).

• Under previous regulations for the New York Paid Family Leave Benefit Law, employees who qualified for Paid Family Leave (“PFL”) and worked more than five days per week could take up to only 60 days intermittent PFL in a 52 consecutive week period.
• Now, the 60-day cap has been eliminated, and employees who work more than five days per week are entitled to take additional intermittent PFL. Specifically, employees who work six days per week are now entitled to 72 days of PFL to be used intermittently in a 52 consecutive week period, and employees who work seven days per week are entitled to 84 days of PFL to be used intermittently in a 52 consecutive week period.

Effective January 1, 2022

Wage and Hour: General Contractors Jointly and Severally Liable for Subcontractors’ Failure to Pay Wages (New York AB 3350A/SB 2766C).

• The New York Labor Law has been amended to add a new section 198-e, which makes contractors jointly and severally liable for unpaid wages, benefits, or wage supplements owed by subcontractors to construction workers.
• Additionally, the General Business Law has been amended to add a new section 756-f, which permits a contractor to withhold payments owed to a subcontractor in the event the subcontractor fails to timely comply with the contractor’s request for payroll records for all employees providing labor on a project.

Effective January 4, 2022

Whistleblower Protection: Expanded Protection for Whistleblowers (New York AB 5144A/SB 4394A)

New York Labor Law section 740 has been amended to include the following changes:

• Expands the definition of “employee” to include former employees and natural persons employed as independent contractors.
• Whereas employees previously were only protected for reporting or complaining about actual violations of the law, the amendments prohibit employers from retaliating against any employee because the employee discloses or threatens to disclose an activity, policy or practice of the employer that the employee reasonably believes violates the law or poses a substantial and specific danger to the public health or safety.
• Employees are not required to notify employers of a potential violation where: (1) there is an imminent and serious danger to the public health or safety; (2) the employee reasonably believes that reporting to the employer would result in a destruction of evidence or other concealment of the activity, policy or practice; (3) such activity, policy or practice could reasonably be expected to lead to endangering the welfare of a minor; (4) the employee reasonably believes that reporting to the employer would result in physical harm to the employee or any other person; or (5) the employee reasonably believes that the employer is already aware of the activity, policy or practice and will not correct such activity, policy or practice.
• Redefines retaliatory action as “an adverse action taken by an employer or his or her agent to discharge, threaten, penalize, or in any other manner discriminate against any employee or former employee exercising his or her rights under [NYLL §740.]”
• Expands the statute of limitations for bringing a claim from one to two years from the date of the alleged retaliatory action.
• Requires employers to notify employees of their protections, rights, and obligations under the law, by posting notices conspicuously in “easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”

Effective January 26, 2022

Discrimination/Protected Classifications: Domestic Workers Considered Covered Employees under the New York City Human Rights Law (NYC Int. No. 0339-B).

• The New York City Human Rights Law has been amended to add domestic workers as covered employees.

Effective March 13, 2022

Job Postings: Minimum and Maximum Salary Information Required for Job Postings in New York City (NYC Int. 1208-B).

• The New York City Council has passed legislation to amend the New York City Human Rights Law to require employers with 4 or more employees to include minimum and maximum salary ranges in job postings for any position located within New York City. This new legislation applies also to postings for promotional or transfer opportunities.
• The new legislation does not apply to job advertisements for temporary employment at a temporary staffing firm, as such staffing firms already are required to provide salary range information after interviews in compliance with the NY State Wage Theft Prevention Act.

Unless Mayor Eric Adams vetoes this bill by January 14, 2022, the bill will become law and take effect in April, 2022.

Employee Monitoring: Prior Written Notice Required to Electronically Monitor Employees (New York AB 430/SB 2628).

• The New York Civil Rights Law has been amended to add a new section 52-c, which will require New York private sector employers to provide prior written notice to employees who are subject to electronic monitoring.
• The notice must be in writing, in an electronic record, or in another electronic form and acknowledged by the employee either in writing or electronically. Further, employers must post the notice of electronic monitoring in a conspicuous place that is readily available for viewing by its employees who are subject to electronic monitoring.
• The notice must inform employees that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.
• Any employer found to be in violation of this new law shall be subject to a maximum civil penalty of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.

Effective May 7, 2022

This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Gordon Rees Scully Mansukhani and any recipient. Employers should consult with counsel regarding the impacts of these new laws and legal updates. Please reach out to the authors for more information or contact a member of the Gordon & Rees Employment Law practice group for additional information.