Developments in Employment Law as We Head Into 2023

Developments in Employment Law as We Head Into 2023

As we head into a brand new yr, it is vital for employers to pay attention to and plan for developments in numerous areas of employment regulation which have just lately taken impact or will take impact in 2023. This alert highlights these modifications, together with (1) expanded protections for workers; (2) New York’s new gun legal guidelines; (3) wage and hour developments; and (4) COVID-19 updates. This alert additionally covers what employers can do to arrange for these developments.
Expanded Protections for Employees
New York Adult Survivors Act, Effective Nov. 24, 2022: S.66A/A.648A
On May 24, 2022, Governor Kathy Hochul signed into regulation the Adult Survivors Act. The regulation offers that “each civil declare or reason behind motion introduced towards any celebration alleging intentional or negligent acts or omissions by one other celebration for bodily, psychological, or different damage or situation suffered as a results of conduct which might represent” a “sexual offense” (as outlined by Article 130 of the Penal Law) or incest, and that will in any other case be time-barred due to the relevant statute of limitations and/or the plaintiff’s earlier failure to file a discover of declare or intention to file a declare, “is hereby revived.” The sexual offenses described in Article 130 all contain bodily contact of some variety with out consent. Under the brand new regulation, such plaintiffs might start an motion between Nov. 24, 2022, and Nov. 24, 2023. Prior dismissals of actions on the premise of being time-barred or as a result of plaintiff did not file a discover of declare or intention to file a declare usually are not grounds for dismissal of a revival motion below the brand new regulation.
In impact, the brand new regulation creates a one-year window for sexual assault survivors to sue people or their estates, as properly as alleged enabling establishments and companies, no matter when the incident occurred. This is just like the Child Victims Act handed in 2019, which yielded hundreds of lawsuits, by additionally offering a window of time for survivors of childhood sexual abuse to file civil claims that have been previous the statute of limitations.
Lawsuits have already been filed below the brand new regulation, and we anticipate them to extend in numbers, particularly as a result of the regulation permits companies and establishments to be held accountable, together with for psychological damage, which carries a danger of excessive damages awards. Some of the extra high-profile circumstances, for instance, are the lawsuits being introduced towards monetary establishments accusing them of ignoring alleged intercourse trafficking by Jeffrey Epstein. In one other, 5 girls have sued a significant media firm and two manufacturing corporations, accusing them of negligence in reference to Bill Cosby’s alleged sexual misconduct through the filming of his reveals in the early Nineteen Nineties. These and different circumstances display the regulation’s far-reaching results and in specific the potential impact it’ll have on personal employers.
All employers in New York State, no matter their measurement, are required to offer details about New York State’s Division of Human Rights’ (NYDHR) sexual harassment hotline in any supplies they’re required to offer to staff relating to sexual harassment. The info have to be supplied in English as properly as the worker’s major language whether it is Spanish, Chinese, Korean, Polish, Russian, Haitian-Creole, Bengali or Italian. The hotline itself is a toll-free confidential hotline operated by the NYDHR that gives entry to professional bono counsel.
The hotline info is as follows: 1-800-HARASS-3 (1-800-427-2773), Monday – Friday from 9 a.m. till 5 p.m.
Employers are already required below state regulation to undertake a sexual harassment coverage and conduct sexual harassment prevention coaching for workers on an annual foundation. Both of these gadgets ought to subsequently be up to date to incorporate the hotline info. In addition, employers ought to replace some other sexual harassment insurance policies they’ve, together with these required below the New York City Human Rights Law, such as in a handbook or postings, to incorporate the hotline info. As with the necessary coverage and coaching required below state regulation, though employers usually are not required to acquire signed acknowledgment from their staff that they acquired the hotline info, it’s inspired. By distinction, below metropolis regulation, employers should preserve a document of staff’ coaching for a minimum of three years. Helpful steering and FAQs relating to the necessities to keep up a sexual harassment coverage and conduct sexual harassment prevention coaching might be discovered right here on New York State’s web site and right here on town’s web site. Note that New York State is in the method of reviewing its Model Sexual Harassment Prevention Guidance (as required by regulation each 4 years) and has indicated plans to provide a revised mannequin sexual harassment coverage.
The present New York State regulation defending nursing staff requires employers to offer affordable unpaid time to allow staff to nurse for as much as three years following childbirth and prohibits discrimination towards such staff who nurse in the office. The present regulation additionally offers that employers shall make “affordable efforts” to offer a lactation room or location.
As amended, efficient June 7, 2023, the regulation requires employers to designate a lactation room or location upon request from an worker to nurse in the office, bringing it in line with New York City legal guidelines. The regulation has a number of necessities for the situation:

The location have to be (1) in shut proximity to the work space; (2) properly lit; (3) shielded from view; and (4) free from intrusion.
The location should embrace, at a minimal, a chair, a working floor, close by entry to scrub working water and, if the office has electrical energy, {an electrical} outlet. The location can’t be a restroom or bathroom stall.
If the situation just isn’t used solely for nursing, it have to be made obtainable to nursing staff when wanted and can’t be used for some other goal whereas it’s getting used for nursing. Employers should present discover as quickly as practicable when the situation is getting used for nursing.
If the office has entry to refrigeration, employers should lengthen entry for the aim of storing expressed milk.

The above necessities are practically equivalent to those below metropolis Local Law Int. 2018/185, besides the brand new state regulation applies to all employers no matter measurement, whereas town regulation applies solely to employers with 4 or extra staff. Under the brand new state regulation, when an employer can display that offering such a location could be impracticable as a result of it might impose an undue hardship, that employer is just required to make affordable efforts to offer a nursing location. In distinction, if a metropolis employer is unable to adjust to town regulation as a result of it poses an undue hardship, it’s required to interact in a cooperative dialogue to find out what, if any, lodging could also be obtainable and supply a written discover on the conclusion of that course of relating to whether or not any lodging was granted or denied.
Under the brand new state regulation, employers can be required to replace their written insurance policies to replicate modifications to the regulation and should present such written insurance policies to staff upon hiring and yearly thereafter, as properly as to staff returning to work following the start of a kid. Specifically, the coverage should:

Inform staff of their rights below the regulation.
Specify the means by which a request could also be submitted for a lactation room or location.
Require the employer to reply inside an affordable timeframe to not exceed 5 enterprise days.

City employers are already required below Local Law Int. 2018/186 to have a written lactation coverage that’s just like the one which can be required below state regulation, however it should additionally embrace a process for when two or extra staff want to make use of the lactation room and state that if a request to make use of the room would pose an undue hardship, there shall be a cooperative dialogue with the requesting worker. City regulation solely requires employers to disseminate their lactation coverage upon hiring.
Employers in town are required to adjust to each state and metropolis regulation. In preparation for when the regulation takes impact, employers ought to assessment and amend their current lactation insurance policies as crucial to make sure compliance with the legal guidelines’ necessities and take steps to create a compliant lactation room or location.
On Nov. 21, 2022, Gov. Hochul signed into regulation an modification to Section 215 of the New York Labor Law that protects staff towards retaliation for taking legally protected break day by concentrating on points-based attendance insurance policies, or “no-fault” attendance guidelines, that assign penalty factors for absences whatever the cause for the absence. Usually, when an worker incurs a sure variety of penalty factors below these insurance policies, the worker could also be discharged or in any other case disciplined. These insurance policies probably run the danger of deceptive staff into considering they can not take break day even whether it is legally protected, and employers who strictly implement such insurance policies could also be violating legal guidelines that present protected break day, such as the Family and Medical Leave Act, Americans with Disabilities Act, New York Paid Family Leave Law, New York State Paid Sick Leave Law and New York City Earned Safe and Sick Time Act.
The regulation offers that an employer can not “threaten, penalize, or in some other matter discriminate or retaliate” towards any worker “as a result of such worker has used any legally protected absence pursuant to federal, native, or state regulation.” The regulation additionally expressly offers that employers might not assess “any demerit, prevalence, or some other level, or deduction from an allotted financial institution of time, which topics or may topic an worker to disciplinary motion, which can embrace however not be restricted to failure to obtain a promotion or lack of pay.”
In observe, the brand new regulation mustn’t have a major impact on what ought to be employers’ present practices as a result of federal, state and metropolis go away legal guidelines typically have anti-discrimination and retaliation provisions. The new regulation, nevertheless, makes expressly clear that it’s deemed retaliatory and unlawful for no-fault attendance insurance policies to be utilized to absences taken on the premise of legally protected go away. And, employers with no-fault attendance insurance policies ought to fastidiously contemplate how they assess demerits towards staff who take legally protected go away or go away that’s associated to legally protected go away in order to make sure that the applying of such insurance policies just isn’t retaliatory.
On Nov. 1, 2021, Gov. Hochul signed a brand new regulation extending the New York Paid Family Leave regulation to the care of siblings with a severe well being situation by increasing the definition of “member of the family” to incorporate “sibling.” The regulation already covers spouses, home companions, youngsters, stepchildren, dad and mom, parents-in-law, grandparents and grandchildren. “Sibling” is outlined as a organic or adopted sibling, a half-sibling or a stepsibling. The new regulation takes impact on Jan. 1, 2023. Notably, siblings usually are not coated by the federal Family and Medical Leave Act.
Employers in New York ought to be certain that their go away insurance policies replicate this growth.
Automated Employment Decision Tools, Effective Jan. 1, 2023, With Enforcement Beginning on April 15, 2023: Local Law Int. 2021/144
As we beforehand reported, efficient Jan. 1, 2023, employers (and employment companies) in New York City can not use automated employment choice instruments (AEDT) (such as synthetic intelligence) to display screen job candidates for employment or promotion in town except the expertise has been topic to an annual “bias audit.” The regulation is not going to be enforced till April 15, 2023.
AEDTs that fall throughout the scope of the regulation are outlined as computational processes that problem simplified outputs (e.g., scores) which are used to “considerably help or exchange discretionary choice making for making employment selections.” A bias audit, outlined as an neutral analysis by an impartial auditor that evaluates the related AEDT for its disparate impression on the premise of race/ethnicity and intercourse, have to be carried out no multiple yr previous to using the AEDT. Employers should additionally publish a abstract of the outcomes of the audit and the distribution date of the AEDT topic to the audit on their public web site earlier than the AEDT can be utilized.
Employers and companies will even be required to speak in confidence to staff and candidates who apply for a place or promotion and reside in town whether or not an AEDT can be used in their evaluation or analysis a minimum of 10 enterprise days earlier than the AEDT’s use and permit an worker or candidate to request another choice course of or lodging. In addition, employers should additionally notify staff and candidates who reside in town in regards to the job {qualifications} and traits that the AEDT will assess a minimum of 10 enterprise days earlier than use. In impact, these necessities imply that there should be a 10-business-day ready interval earlier than an employer can transfer ahead with a candidate in making use of the AEDT. Candidates and staff who reside in town are additionally entitled to, inside 30 days of written request and if not already disclosed on the employer’s or company’s web site, details about the kind of information collected for the AEDT, the supply of such information and the employer or employment company’s retention coverage except disclosure of this info would violate the regulation or intrude with a regulation enforcement investigation.
Violations of the regulation may end result in a $500 fantastic for the primary violation and as much as $1,500 for subsequent violations, and enforcement is vested in the company counsel or such different individuals designated by the counsel. The regulation doesn’t prohibit a non-public proper of motion.
On Sept. 23, 2022, the New York City Department of Consumer and Worker Protection (DCWP) printed proposed guidelines to implement the regulation. Among many different factors of clarification, the foundations present that for an AEDT to “considerably help or exchange” employers’ selections and thus fall throughout the regulation’s necessities, the employer have to be (1) relying solely on a simplified output (e.g., a rating, tag, classification, rating) with no different components thought of; (2) utilizing the output as one set of standards that’s weighted greater than some other; or (3) utilizing the output to overrule or modify conclusions derived from different components like human decision-making. The guidelines additionally prescribe {that a} bias audit should embrace, at minimal, a “choice price” for every classification group analyzed by the AEDT and the “impression ratio” for every class. The choice price means the speed at which people in a class are chosen to maneuver ahead or assigned a classification. The impression ratio calculates predicted success primarily based on the candidate’s class. Finally, the foundations present that employers can adjust to the regulation’s discover necessities for candidates by posting that they use an AEDT on their careers or jobs web site (or in a written coverage for present staff), in a job posting or by mail. Notably, the foundations don’t touch upon the usual(s) for when an applicant is entitled to another choice course of or lodging.
On Dec. 12, 2022, the DCWP introduced that it might not implement the regulation till April 15, 2023, as a result of excessive quantity of public feedback acquired. There can be a second public listening to earlier than the DCWP points last rules. In the meantime, employers ought to assess whether or not the hiring and promotion instruments they use fall throughout the definition of an AEDT below the regulation, and in the event that they do, conduct an impartial bias audit. Employers conducting an audit, particularly for the primary time, ought to seek the advice of counsel to make sure the audit is carried out in accordance with the regulation and guidelines.
New York’s Gun Laws, Effective Sept. 1, 2022: S.51001/A.41001
On July 1, 2022, Gov. Hochul signed into regulation restrictions on possession of weapons in specified places following the Supreme Court’s choice in NYSRPA v. Bruen. The portion of the regulation regarding employers is as follows:
An individual is responsible of felony possession of a weapon in a restricted location when such particular person possesses a firearm, rifle, or shotgun and enters into or stays on or in personal property the place such particular person is aware of or moderately ought to know that the proprietor or lessee of such property has not permitted such possession by clear and conspicuous signage indicating that the carrying of firearms, rifles, or shotguns on their property is permitted or has in any other case given categorical consent.
As such, except an employer expressly consents to the carrying of a weapon on its premises or posts conspicuous signage indicating that carrying a weapon is permitted, an employer’s personal premises can be thought of a “restricted location” below the regulation for which possession of a weapon is a felony offense. Even although the default below the regulation is that an employer’s personal premises can be thought of a “restricted location,” employers ought to contemplate a written coverage affirmatively prohibiting weapons on their premises. It ought to be famous that there have been constitutional challenges to the regulation, however as of the date this alert was printed, the regulation stays intact.
Wage and Hour
New York’s Pay Transparency Laws: New York State, Effective Sept. 17, 2023: S.9427A/A.10477; New York City, Effective Nov. 1, 2022: Local Law Int. 2022/059
Today Gov. Kathy Hochul signed a brand new regulation amending Section 194-b of the New York Labor Law that requires employers in New York State to record the compensation vary and job description (if one exists) in job commercials and postings relating to promotion and switch alternatives for positions that may or can be carried out, a minimum of in half, in the state of New York. The new regulation additionally requires that postings embrace a common assertion that compensation relies on commissions if relevant to such place. In addition, employers should preserve information documenting the historical past of compensation ranges for every job, promotion or switch alternative, as properly as the related job descriptions.
Consistent with at this time’s growth, and as we mentioned in a previous alert, pay transparency legal guidelines are on the rise throughout the nation, together with the one in New York City that went into impact on Nov. 1 and was additionally the topic of a previous alert. The metropolis regulation is just like the brand new state regulation. Both require coated employers (together with employment companies) that publish a job, promotion or switch alternative for a place that may or can be carried out in town/state to incorporate the annual wage or wage vary for the place and/or the minimal and most hourly wage that the employer in good religion believes on the time it’ll pay for such place. Importantly, distant jobs that may be carried out in town or state, even when the employer doesn’t have a bodily presence there, are coated by town and state legal guidelines’ necessities.
There are, nevertheless, some variations. The metropolis regulation applies to all employers (and employment companies), whereas the brand new state regulation solely applies to employers with 4 or extra staff (and companies no matter measurement). In addition, state regulation requires the posting of a job description, if one exists, and a press release that compensation can be primarily based on commissions if the chance is paid on fee. State regulation additionally has a record-keeping requirement. The metropolis regulation doesn’t have both of those necessities. Employers in New York City are required to adjust to each legal guidelines.
In addition, the one individuals who can carry a declare primarily based on a violation of town regulation are present staff (not candidates) who carry an motion towards their employer for promoting a job, promotion or switch alternative with out posting a minimal and most hourly wage or annual wage. And, if an employer cures any violation inside 30 days after receiving discover from the New York City Commission on Human Rights by modifying the posting, no administrative penalty applies; nevertheless, if accepted by the fee, the submission of proof of a treatment can be deemed an admission of legal responsibility by the employer. In distinction, below the brand new state regulation, any particular person claiming to be aggrieved by the regulation can file a criticism with the New York State commissioner of labor, and an employer discovered to be in violation shall pay a civil penalty of $1,000 for a first-time violation, $2,000 for a second or $3,000 for a 3rd or subsequent violation.
There have been some classes discovered for the reason that metropolis regulation went into impact. There initially have been experiences of combined outcomes and impracticably giant ranges being posted in the early days after town regulation turned efficient (as an illustration, there was reportedly a job listed with a spread starting at $0). But practically two months later, employers appear to be discovering firmer footing. Notably, a rising variety of employers have been reported to be adopting nationwide pay transparency insurance policies given the rising variety of all these legal guidelines throughout the nation and now in the state of New York.
Minimum Wage Rates in New York, Effective Dec. 31, 2022: 12 NYCRR 142, 12 NYCRR 146
The minimal wage in all places outdoors of New York City, Long Island and Westchester will enhance efficient Dec. 31, 2022, to $14.20 an hour. The minimal wage in New York City, Long Island and Westchester continues to be $15 per hour.
Under the Hospitality Wage Order, employers can proceed to use a tip credit score, however requirements differ relying on whether or not the worker is a “service worker” or a “meals service employee.” Employers should immediately pay service staff and meals service employees a minimum of the Minimum Cash Wage and can’t declare a tip credit score that exceeds the Maximum Tip Credit. Additionally, for service staff, employers’ potential to assert the tip credit score depends upon the workers’ weekly tip common equaling a minimum of the hourly Tip Threshold (greater for workers at resort motels) and their direct wage plus suggestions equaling or exceeding the minimal wage.
The wage charges as of Dec. 31, 2022, are as follows:

 
Effective Oct. 1, 2022, the minimal wage for residence care aides elevated by $2 above the minimal hourly wage.

As we mentioned in a previous alert, pay transparency legal guidelines are on the rise throughout the nation, together with the one in New York City that went into impact on Nov. 1 and was additionally the topic of a previous alert. The metropolis regulation requires coated employers that publish a job, promotion or switch alternative for a place that may or can be carried out in town to incorporate a wage vary for the place and/or the minimal and most hourly wage that the employer in good religion believes on the time it’ll pay for such place. Importantly, distant jobs that may be carried out in town, even when the employer doesn’t have a bodily presence in town, are coated by the regulation’s necessities.
There have been experiences of combined outcomes and impracticably giant ranges being posted in the early days when the regulation turned efficient (as an illustration, there was reportedly a job listed with a spread starting at $0). But practically two months later, employers appear to be discovering firmer footing. Notably, a rising variety of employers have been reported to undertake nationwide pay transparency insurance policies given the rising variety of all these legal guidelines throughout the nation.
It is predicted {that a} related state regulation (S.9427A/A.10477), at the moment sitting on Gov. Hochul’s desk, will take impact someday in late 2023 (it takes impact 270 days after her approval). That regulation accommodates three further necessities with which metropolis employers must comply: (1) a posting should embrace a job description if one exists; (2) a posting should embrace a common assertion that compensation relies on fee, if relevant to such place; and (3) employers should preserve and preserve information of compensation historical past for posted jobs, promotions and switch alternatives.
Gov. Hochul is predicted to signal into regulation an modification to Section 201 of the New York Labor Law, which modifications the necessities regarding office posters. The regulation requires that office posters and some other paperwork required to be bodily posted at a worksite below state or federal regulation even be made electronically obtainable to staff on the employer’s web site or by e mail. The regulation additionally requires that employers present discover that such paperwork can be found electronically. The regulation takes impact instantly upon her signature.
Proposed Independent Contractor Rule
On Oct. 13, 2022, the United States Department of Labor proposed a brand new rule on classifying employees as impartial contractors below the Fair Labor Standards Act. The rule embraces a totality of the circumstances evaluation to make the final word willpower relating to to what extent the employee is economically depending on the employer and units forth six “financial actuality” components, which aren’t exhaustive:

Opportunity for revenue or loss relying on managerial talent: When the employee can decide or meaningfully negotiate their pay, settle for or decline jobs, select the order and time in which they carry out jobs, interact in efforts to broaden their enterprise, or make hiring selections, impartial contractor standing is favored. But if the employee has no alternative for a revenue or loss, then it might counsel the employee is an worker. Critically, a employee volunteering to tackle extra hours or duties doesn’t point out managerial talent and thus impartial contractor standing.
Investments by the employee and the employer: When a employee’s investments are capital or entrepreneurial in nature, such as rising the employee’s potential to do completely different or extra forms of work or extending market attain, and they might typically help an impartial enterprise and serve a businesslike perform, impartial contractor standing is favored. However, the mere proven fact that employees bear the price of instruments and gear to do their job doesn’t make them impartial contractors.
Degree of permanence of the work relationship: When a piece relationship is for a particular period, nonexclusive, project-based or sporadic, then impartial contractor standing is favored. Workers might be impartial contractors in the event that they work for fastened intervals of time, however seasonal or momentary work by itself wouldn’t essentially point out impartial contractor standing.
Nature and diploma of management: When the employer units employees’ schedules, supervises their efficiency or explicitly limits their potential to work for others, worker standing is favored. The proposed rule lists a number of different indicia of management that could be thought of. Importantly, the employer requiring {that a} employee adjust to authorized obligations could also be indicative of management and thus worker standing.
Extent to which the work carried out is an integral a part of the employer’s enterprise: When the work perform carried out (not the employee themselves) just isn’t vital, crucial or central to the employer’s principal enterprise, impartial contractor standing is favored.
Skill and initiative: When employees use specialised abilities and don’t rely upon coaching from the employer, impartial contractor standing is favored as a result of it evidences that the employees are utilizing their specialised abilities in reference to a businesslike initiative.

The proposed rule additionally units forth that further components could also be related in the event that they “in a way point out whether or not the employee is in enterprise for themselves, as against being economically depending on the employer for work.”
Public remark was due on Dec. 13, 2022, and the submissions have been voluminous, which suggests will probably be a while earlier than a last rule is issued. Only then can courts look to the rule as an interpretive information.
COVID-19
The ever-changing panorama of necessities that employers grappled with through the COVID-19 pandemic could also be waning, however some are nonetheless in impact. First and foremost, New York paid vaccination go away has been prolonged till the tip of 2023. Under the regulation, employers should present staff with “a enough time frame, to not exceed 4 hours” of paid go away per COVID-19 vaccination and booster dose on the worker’s common price of pay, which have to be in addition to common go away accrual. Second, employers in New York are nonetheless required to offer a minimum of 5 or 14 days (relying on employer measurement) of job-protected, paid COVID-19 sick go away to staff who must take go away as a result of they’re below a compulsory or precautionary order of quarantine or isolation as a result of COVID-19. Such staff should submit documentation of an order of isolation by the State of New York, the Department of Health or native board of well being or by utilizing this way from New York State. Third, employers should present paid go away to staff who must take care of a minor dependent little one below a compulsory or precautionary order of quarantine or isolation as a result of COVID-19 in the course of that interval. Such staff have to be unable to work by way of distant entry or different means and should present documentation of the necessary or precautionary order of quarantine or isolation. Finally, masks are nonetheless required in well being care services, amongst different necessities in such services.
Many legal guidelines and necessities are, nevertheless, now not in impact. There is not any vaccination or masks requirement in New York City for any exercise, although companies can nonetheless select to require them for patrons and staff. There can be no requirement in New York State to conduct each day screenings of staff as a result of efficient March 17, 2022, the New York State commissioner of well being ended the designation of COVID-19 as an airborne infectious illness below the New York HERO Act. However, state employers are nonetheless required to have an airborne infectious illness prevention plan that’s supplied to staff inside 30 days of its creation and to new staff upon rent, as properly as posted in the office and in their handbook.
For questions or considerations relating to any of the problems raised in this alert, please contact a member of Kramer Levin’s Employment Law Department.
Authors and Editors

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