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02 Jul

June 2020 New York HR Legal Updates

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New Rules Adopted Clarifying the “Safety-Sensitive” Exception

What happened?
New York City has adopted new rules clarifying the “Safety-Sensitive” exception for pre-employment tests.

What are the details?
The new rules established by New York City grant greater leeway to employers to administer marijuana tests in the pre-employment process. The following guidelines outline what types of positions will be granted “Safety-Sensitive” status:

  • The position requires that an employee regularly, or within one week of beginning employment, work on an active construction site;
    • The position requires that an employee regularly operate heavy machinery;
    • The position requires that an employee regularly work on or near power or gas utility lines;
    • The position requires that an employee operate a motor vehicle on most work shifts;
    • The position requires work relating to fueling an aircraft, providing information regarding aircraft weight and balance, or maintaining or operating aircraft support equipment; or
    • Impairment would interfere with the employee’s ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm to the employee or to other people.

These build upon the previous exemptions listed below:

  • positions in law enforcement;
    • certain construction jobs (as defined in the law);
  • any position requiring a commercial driver’s license; and
    • positions requiring the supervision or care of children, medical patients, or vulnerable persons (as defined in the law).

Read more about the exemption here.

What do employers need to do?
Employers conducting marijuana tests in New York City will need to review the responsibilities of each position to ensure they fit the above criteria to meet exemption status.

The official Notice of Adoption can be found here.

Summary of State Laws (Q1 & Q2 2020)

Voting Leave
Effective April 3, 2020, New York’s voting leave law is amended (reversing most of the amendments effective April 12, 2019) to require an employer to provide up to two hours of paid voting leave. The amendments also include adding back the requirements that leave may be taken by an employee without sufficient time outside of working hours to vote and that employees must notify their employer at least two workdays (but not more than 10 workdays) before election day of the need for time off to vote.

Wage Theft
Effective June 23, 2020, amendments to the Wage Theft Prevention Act (WTPA) require employers who claim prevailing wage supplements to provide employees with a wage rate notice at the time of hire that includes:

  • Hourly rate claimed
  • Type of supplement, such as pension or health care
  • Names and addresses of the person or entity providing the supplement
  • Agreement, if any, requiring or providing for such supplement, together with information on how copies of such agreements or summaries may be obtained by an employee.

Covered employers are also required to include, on each employee’s wage statement, the type of each prevailing wage supplement claimed and the hourly rate for each supplement or be accompanied by a copy of the hiring notice containing that information.

Effective October 1, 2020, home health care employers in certain locations are required to include the benefit portion of the minimum rate of home care aide total compensation on the home care worker’s wage rate notice at the time of hire and on the wage statements. The wage statement must also include the type of such benefits provided and the name and address of the person or entity providing such benefits.

Tip Credit Reduction
Effective June 30, 2020, the maximum tip credit for workers covered by the Minimum Wage Order for Miscellaneous Industries and Occupations is reduced by 50% (and completely eliminated on December 31, 2020).

Call Center Jobs Notice Requirements
Effective June 30, 2020, the New York Call Center Jobs Act requires covered call center employers to provide advance notice of at least 100 days to the Labor Commissioner if the employer intends to relocate out of New York State, or reduce call volume by at least 30% with the intent to relocate out of state. In addition, the Act requires the Labor Commissioner to keep a list of call center employers that have relocated out of state, which will be available on the New York State Department of Labor website. Such relocations affect the call center employers’ access to state grants, tax benefits, and procurement contracts.

Sexual Harassment Claims
Effective August 12, 2020, the statute of limitations is extended from one year to three years for employees to file sexual harassment complaints with the New York Division on Human Rights.

New York City Sexual Harassment Training
In New York City’s Commission on Human Rights guidance regarding an amendment to the New York City Human Rights Law (NYCHRL) effective January 11, 2020, which expanded protections under the law to independent contractors and freelancers, employers are now required to provide certain independent contractors and freelancers with sexual harassment prevention training in accordance with the NYCHRL. Similar to employees and interns, independent contractors must receive this training if they work for an employer of 15 or more people, work more than 80 hours in a calendar year, and work for at least 90 days.

Suffolk County Criminal Background
Effective August 25, 2020, employers with 15 or more employees are prohibited from inquiring about a job applicant’s prior criminal convictions during the application process or before a first interview.

The law allows employers to inquire about prior criminal convictions when:

  • The employer is hiring for licensed trades or professions (including interns and apprentices) and asks applicants the same questions asked by the trade or professional licensing body in accordance with state law.
  • Certain convictions under or violations of state or federal law prohibit employment in that position.
  • The inquiries are authorized by law.

The restrictions do not apply to certain public employers, private schools, and private service providers of direct services specific to the care or supervision of children, young adults, senior citizens, or the physically or mentally disabled.

Paid Sick Leave
Effective September 30, 2020, New York’s statewide paid sick leave law requires that employers with 100 or more employees provide up to 56 hours of paid sick leave per year, and employers with fewer than 100 employees provide up to 40 hours of paid sick leave per year, except employers with fewer than four employees and a net income of less than $1 million, whom can provide sick leave as unpaid. Employees accrue one hour of sick leave for every 30 hours worked beginning September 30, 2020, or when employment begins, whichever is later. Employers are not required to allow the use of sick leave until January 1, 2021.

Unused sick leave must be carried over to the next calendar year, but the employer may limit the amount of sick leave that may be used in a calendar year to 40 hours (employers with fewer than 100 employees) and 56 hours (employers with 100 or more employees).

Sick leave may be used for the employee’s or employee’s family member’s mental or physical illness, injury or health condition; medical diagnosis, care or treatment; and preventive medical care. It can also be used for an absence for various reasons when the employee or employee’s family member has been the victim of domestic abuse, a family offense, sexual offense, stalking, or human trafficking.