By Melanie M. Ghaw, Esq. and Rachel H. Khedouri, Esq.
Following a recent flurry of activity in the New York State Legislature, Governor Hochul signed into law a number of bills that have a direct impact on New York employers. This legislative roundup summarizes and highlights key points of recently enacted legislation of significance to employers. The below laws went into effect immediately unless otherwise indicated.
- The threshold for white-collar exemption from wage payment laws has increased.
On September 15, 2023, Governor Hochul signed into law S5572/A6796, which amends the New York Labor Law (“NYLL”) to increase the threshold for exemption from wage payment protections, such as pay frequency rules requiring employers to pay wages at least semi-monthly on regular pay days designated in advance and cash payment requirements prohibiting employers from depositing wages in a bank without employees’ advance written consent. Currently, individuals employed in an executive, administrative, or professional capacity who earn $900 per week are exempt from such protections; as of March 13, 2024, the earning requirement will increase to $1,300 per week. Employees who do not meet this new threshold will lose the exemption and be subject to the NYLL’s wage payment protections.
This threshold is distinct from the salary thresholds applicable to exempt administrative and executive employees from New York State minimum wage and overtime laws, which are currently $1,125 per week in New York City, Long Island and Westchester and $1,064.25 per week for the remainder of the state. As a reminder, in New York, there is no minimum salary requirement for professionals to be exempt from wage and hour laws. Accordingly, employers must look to the federal salary threshold for the professional exemption established under the Fair Labor Standards Act (“FLSA”). As we previously reported HERE, the U.S. Department of Labor recently issued a notice of proposed rulemaking, which would increase the current salary threshold for the FLSA’s white-collar exemption from $684 to $1,059 per week. The proposed federal rule is scheduled to go into effect November 7, 2023.
- Wage theft is now a crime of larceny.
On September 6, 2023, Governor Hochul signed into law S2832-A/A154-A, which amends the New York Penal Law to add wage theft to the types of activities included in the crime of larceny. The law adds “compensation for labor or services” to the definition of “property” protected from theft. Under the new law, “wage theft” occurs when an employer fails to pay minimum wage and overtime, or fails to pay a promised wage greater than minimum wage and overtime, for the work performed. The law also allows the aggregation of all nonpayments or underpayments, to an individual or a group of individuals, into one larceny count even if the nonpayments or underpayments occurred in multiple counties.
- Captive audience meetings are banned.
On September 6, 2023, Governor Hochul signed into law S4982/A6604, making New York the fourth state to prohibit mandatory “captive audience” meetings. The law precludes an employer from taking adverse action against employees for their refusal to attend an employer-sponsored meeting, listen to speeches, or view communications, “the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters,” including the decision to join or support a labor organization. The law does not apply to religious corporations, entities, associations, educational institutions, or societies that are exempt from the requirements of Title VII.
Employers are required to inform employees of their rights under the law by posting a sign in each workplace in a location where notices to employees are normally posted. A similar law in Connecticut currently is the subject of litigation claiming that it is preempted by the National Labor Relations Act; we will be monitoring for a similar challenge to the New York law.
- Minimum weekly workers’ compensation benefits are set to increase.
On September 6, 2023, Governor Hochul signed into law S1161-A/A2034-A, which amends the New York State Workers’ Compensation Law to increase the minimum weekly compensation for individuals receiving benefits due to a work-related permanent or temporary disability. Under the new law, the minimum weekly benefit will increase substantially from the current $150 per week as follows:
- For work-related disabilities that occur from January 1, 2024 through December 31, 2024: $275 per week;
- For work-related disabilities that occur from January 1, 2025 through June 30, 2026: $325 per week; and
- For work-related disabilities that occur from July 1, 2026 and on or after July 1 of each following year: One-fifth of the New York State average weekly wage for the year in which the disability is reported.
Employees whose wages at the time of injury are less than the minimum weekly compensation rate will receive their full wages.
- Employers are prohibited from requesting or requiring access to applicants’ and employees’ social media accounts.
On September 14, 2023, Governor Hochul signed into law S2518/A836, which amends the NYLL as of March 12, 2024 to prohibit an employer from requesting or requiring an employee or applicant to disclose any user name, password, or other means to access a personal account, including social media accounts, as a condition of hiring or employment, or for use in a disciplinary action. The law also prohibits employers from requesting or requiring employees or applicants to access their personal account in the employer’s presence, or to reproduce photos, videos, or other information contained in the personal account.
The law does not apply to accounts known or provided by the employer to be used for business purposes if the employee was given prior notice of the employer’s right to request or require access to the account. Employers also may access electronic communications devices that are paid for, in whole or in part, by the employer where such payment was conditioned on the employer’s right to access the device, and the employee was given prior notice of and explicitly agreed to such conditions. Employers should consider reviewing their electronic communications policies to ensure proper notice is provided of the employer’s right to access employee accounts.
- Employers are required to provide a written notice of the right to file for unemployment benefits.
On September 14, 2023, Governor Hochul signed into law S4878-A/A398-A. This law amends the NYLL to codify an existing process required by the New York State Department of Labor pursuant to which employers must provide written notice of the right to file for unemployment benefits to all employees upon termination of employment, whether voluntary or involuntary. The new law adds a requirement to provide notice to those employees whose scheduled working hours are reduced. Employers must provide such notice to affected employees within five working days following the date of termination or reduction in working hours. The law will take effect November 13, 2023; however, employers already are required to provide notice of how to apply for state unemployment insurance to discharged employees under the existing rules. Employers may use Form IA12.3 (available HERE) to provide the required notice.
- Protection against gender identity or expression discrimination is extended to interns.
On August 23, 2023, Governor Hochul signed into law S7382/A7355, which amends the New York State Human Rights Law (“NYSHRL”) relating to discrimination against interns to include “gender identity or expression” as a protected characteristic. Employers who engage interns should be mindful of this new protection in their hiring process and in setting terms and conditions of employment.
If you have any questions relating to this eAlert or need guidance to ensure compliance with these or other New York laws, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.