31 Jan

January 2020 New York HR Legal Updates

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Subminimum Wage for Many Tipped Workers

What happened?
Governor Andrew Cuomo announced December 31, 2019 that the New York State Department of Labor is issuing an order eliminating the tip credit for “miscellaneous” industries statewide by the end of 2020.

What are the details?
New York State law currently allows employers in certain industries to pay tipped employees below the state minimum wage if the employee earns a sufficient amount in tips. This tip credit can only be used if the subminimum wage plus tips add up to at least the minimum wage. Different rules determine the subminimum wage an employer must pay, depending on whether the worker is in the hospitality industry or other “miscellaneous” industries. The formula is particularly complex in non-hospitality industries and varies depending on whether the weekly average of tips received is considered “low” or “high.” 

By the end of 2020, tipped workers in non-hospitality industries will need to be paid at least minimum wage in addition to any tips they may earn. The elimination of the tip credit will be phased in over a one-year period.

  • On June 30, 2020, the difference between the minimum wage and the current subminimum wages will be cut in half.
  • On December 31, 2020, the subminimum wage will be eliminated completely.

At that time, tipped workers in miscellaneous industries must be paid the normal minimum wage.

What do employers need to do?
New York employers with tipped employees (outside of the hospitality industry) must take note of this order and be prepared to comply. This means that employers in the impacted industries must increase the wages of tipped employees as of June 30, 2020 and again on December 31, 2020 at which time you must pay tipped employers the normal minimum wage. You should take the necessary steps to change your payroll accordingly.

Bill: https://www.governor.ny.gov/news/governor-cuomo-announces-end-subminimum-wage-across-miscellaneous-industries-statewide

Article: https://www.fisherphillips.com/resources-alerts-new-york-to-end-subminimum-wage-for

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Ban on Salary Inquiries

What happened?
As of January 6, 2020, New York employers are prohibited from inquiring about an applicant’s prior salary.

What are the details?
The law applies to all public and private employers within New York State and covers applicants and employees who have taken an affirmative step to seek full-time, part-time, or temporary/seasonal employment with an employer. The law does not apply to independent contractors, freelance workers, or other contract workers unless they are to work through an employment agency. The law prohibits all New York employers from taking the following actions with respect to any applicant or current employee:

  • Relying on the wage or salary history of an applicant in determining whether to offer employment to such individual or in determining the wages or salary for such individual;
  • Seeking, requesting, or requiring (orally or in writing) the wage or salary history from an applicant or current employee as a condition to be interviewed as a condition of continuing to be considered for an offer of employment or as a condition of employment or promotion;
  • Seeking, requesting, or requiring (orally or in writing) the wage or salary history of an applicant or current employee from a current or former employer, current or former employee, or agent of the applicant or current employee’s current or former employer;
  • Refusing to interview, hire, promote, otherwise employ or otherwise retaliating against an applicant or current employee based upon prior wage or salary history;
  • Refusing to interview, hire, promote, otherwise employ, or otherwise retaliating against an applicant or current employee because such applicant or current employee did not provide wage or salary history in accordance with the law; and
  • Refusing to interview, hire, promote, otherwise employ, or otherwise retaliating against an applicant or current or former employee because the applicant or current or former employee filed a complaint with the department alleging a violation of the law.

An applicant may choose to voluntarily disclose his or her prior salary. If an applicant voluntarily (and without prompting) discloses his or her salary history, an employer may factor in that voluntarily disclosed information in determining the salary for that person. According to guidance issued by New York State, an employer may ask an applicant for his or her salary expectations, as opposed to his or her salary history.

What do employers need to do?
Employers should take steps to ensure anyone with interviewing or hiring responsibilities refrain from seeking any information from an applicant about his or her prior salaries. Employers should also review job applications and other documents used in the hiring process to ensure that any questions about wage history are removed. If an employer uses third-party vendors in the hiring process (e.g., for background checks), they should ensure the vendors are aware of the new law and have taken steps to ensure compliance.

Bill: https://www.ny.gov/programs/salary-history-ban

Article: https://www.jacksonlewis.com/publication/guidance-new-york-s-ban-salary-inquiries-issued

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Women on Corporate Boards Study

What happened?
New York recently enacted the “Women on Corporate Boards Study” law (S. 4278). The new law applies to domestic and foreign corporations “authorized to do business” in the state, given the expanse of companies doing business in New York. According to the state’s press release on the new law, the New York legislation will take effect on June 27, 2020.

What are the details?
Under the new law, both foreign and domestic corporations, including publicly traded and privately held, are required to report the number of directors appointed to their board and to report how many directors are female. The bill also requires the U.S. Securities and Exchange Commission to create a Diversity Advisory Group, which would ultimately “make recommendations of strategies that issuers could use to increase gender, racial, and ethnic diversity among board members.”

What do employers need to do?
Employers (that apply) will need to familiarize themselves with the new law and its reporting requirements.

Bill: https://www.nysenate.gov/legislation/bills/2019/s4278?intent=support

Article: https://www.corporatecomplianceadvisor.com/2020/01/new-york-enacts-legislation-related-to-board-diversity/

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