By Melanie M. Ghaw, Esq. and Rachel H. Khedouri, Esq.
As 2023 wound down, New York legislators were engaged in a whirlwind of activity, proving the old adage that it is the City (and State) That Never Sleeps. Employers can prepare for the onslaught of new State and City laws in a New York minute by reviewing these brief summaries of a few of the most impactful workplace laws affecting New Yorkers in 2024 – as well as some coming soon.
NEW YORK STATE
1) Clean Slate Act Requires Employers to Provide Criminal History Report, Law, and Notice During Background Check Process.
On November 16, 2023, Governor Hochul signed into law A1029C – also known as the “Clean Slate Act.” The law, effective November 16, 2024, will require records of certain past criminal convictions to be sealed. Eligible misdemeanor convictions will be sealed for at least three years following an individual’s release from incarceration or, for individuals not incarcerated, the imposition of a sentence. Eligible felony convictions will be sealed for at least eight years following an individual’s incarceration or imposition of a sentence, as applicable.
Consistent with Fair Credit Reporting Act (“FCRA”) requirements, the Clean Slate Act will require employers to provide individuals for whom background checks are conducted with (1) a copy of the individual’s criminal history report, (2) a copy of Article 23-A of the New York Correction Law, and (3) notice of the right to seek correction of any erroneous information contained in the record. In contrast to the FCRA, the Clean Slate Act requires employers to provide these materials regardless of whether they intend to take adverse action based on the criminal history information.
Sealed criminal conviction records generally will not be accessible in a background check report except where “relevant and necessary,” such as where the criminal background check is required under state or federal laws prior to licensure or where the check is conducted when hiring individuals to work with “vulnerable populations.” Sealed records not provided in response to an employer’s request for criminal history information may not be introduced as evidence of negligence in a civil action against an employer (e.g., claims of negligent hiring, retention, or supervision). Additionally, employers acting reasonably and in good faith may not have a duty to investigate whether convictions have been sealed under the law.
2) Increased Salary Thresholds Subject More Employees to Minimum Wage, Overtime, and Wage Payment Protections.
On December 27, 2023, the New York State Department of Labor (“NYSDOL”) adopted proposed regulations to increase the salary threshold for minimum wage and overtime exemptions under the New York Labor Law (“NYLL”). Effective January 1, 2024, the new salary thresholds for the “executive” and “administrative” exemptions to overtime are $1,200 per week for New York City, Westchester, and Long Island and $1,124.20 per week for the rest of the state. Since New York does not have a salary threshold for the “professional” exemption to overtime, individuals covered by this exemption will continue to be subject to the professional exemption salary threshold established under the Fair Labor Standards Act (“FLSA”), currently set at $684 per week. However, this salary threshold also may soon increase: As we reported in the Fall (HERE), the U.S. Department of Labor recently issued a notice of proposed rulemaking to increase the FLSA’s white-collar exemption salary threshold from $684 to $1,059 per week. Stay tuned: The final rule is expected to be released in April 2024.
Previously, on September 15, 2023, Governor Hochul signed into law S5572/A6796, amending the NYLL to increase the threshold for exemption from wage payment protections, including the method and frequency of wage payments. Currently, individuals employed in an executive, administrative, or professional capacity, as defined by NY law, who earn $900 per week are exempt from such protections. Effective March 13, 2024, the earning requirement will increase to $1,300 per week, rendering employees earning less than the new threshold subject to wage payment protections under the NYLL.
In light of these changes, employers should consider whether to increase the salaries of exempt employees who are earning below the new thresholds or to reclassify those positions as non-exempt.
3) ON THE HORIZON: New York Poised to Publish Pay Transparency Regulations.
Effective September 17, 2023, employers with four or more employees became required to disclose the minimum and maximum annual salary or hourly wage ranges in advertisements for jobs, promotions, and transfers (including electronic job postings). The requirements apply to jobs physically performed in the state or by out-of-state workers who report to an office or supervisor within the state. Just prior to the law’s effective date, the NYSDOL issued proposed regulations to provide additional clarification and guidance, including applicability to out-of-state employees and temporary help firms, pay range disclosure obligations, and required content for job advertisements, as we reported HERE. Given that the proposal’s comment period ended on November 12, 2023, employers had anticipated receiving the final regulations by year-end; however, the NYSDOL still has not released its final rules. We will continue to monitor for updates.
NEW YORK CITY
1) Workers’ Bill of Rights Imposes New Notice and Posting Requirements.
In November 2023, the New York City Council passed Int. No. 569-B, amending the Administrative Code of the City of New York to require employers to distribute to employees and post in the workplace a yet-to-be-published Workers’ Bill of Rights notice (“Bill of Rights”). Under the new law, the Department of Consumer and Worker Protection (“DCWP”), in collaboration with the Mayor’s Office of Immigrant Affairs, the New York City Commission on Human Rights, and community and labor organizations, have until March 1, 2024, to create and publish a Bill of Rights which will (1) provide “information about rights under relevant federal, state and local law that apply to employees, prospective employees or independent contractors in the city”; (2) “indicate which rights apply to workers regardless of immigration status”; and (3) “include information about the right to organize a union.”
By July 1, 2024, employers will be required to:
- Provide the Bill of Rights to each existing employee, and thereafter, provide it to all new hires on or before an employee’s first day of work;
- Conspicuously post the Bill of Rights in an area accessible and visible to all employees;
- Make the Bill of Rights available to employees online or on its mobile application, if such means are regularly used to communicate with its employees; and
- Provide the Bill of Rights in English and any language spoken as a primary language by at least 5% of its employees, if it is available in that language on the City’s website.
Employers who violate the notice and posting requirements will be liable for a civil penalty of $500; first-time violators will have an opportunity to correct the violation within 30 days following the first complaint. We will provide further updates when the Bill of Rights is published.
2) ON THE HORIZON: Employees Gain Private Right of Action for Violations of NYC’s Earned Safe and Sick Time Act.
On January 20, 2024, New York City enacted Int. No. 563-A, which provides aggrieved individuals with the right to file a civil action in court for violations of New York City’s Earned Safe and Sick Time Act (“ESSTA”). Currently, individuals asserting a violation of ESSTA only have a right to file a complaint with the DCWP. Effective March 20, 2024, individuals will have two years from the date they knew or should have known of the alleged violation to commence a civil action in any court of competent jurisdiction. As a reminder, the ESSTA requires employers to provide leave to employees working in New York City for the care and treatment of themselves or a family member and to seek legal and social services assistance or take other safety measures if the employee or a family member may be the victim of any act or threat of domestic violence or unwanted sexual contact, stalking, or human trafficking.