August 2021: New York Fair Chance Act Amendments Take Effect

Update Applicable to:
All employers in New York. 

What happened?
On July 15, 2021, the New York City Commission on Human Rights (NYCCHR) issued their updated Legal Enforcement Guidance on the Fair Chance Act (FCA) and Employment Discrimination. 

What are the details?
Effective July 29, 2021, the guidance makes important amendments to processes on employee hiring, current employee assessment, and employment decisions based on criminal history. 

The FCA amendments impact the sequence of events an employer must take to stay in compliance with a clarified “two-tiered” screening process. Employers must complete all non-criminal pre-employment screenings and they must be passed by the applicant before a conditional offer of employment is made. After a conditional offer of employment is made, the employer may request and review an applicant’s criminal history, which may only be considered in compliance with the individualized assessment, notice and consideration requirements of the FCA. The non-criminal and criminal background checks should be obtained separately from each other and at their specified points in the hiring process. Driving records should be reviewed after the conditional offer has been extended as they can contain  non-criminal and criminal information. 

Also explicitly stated is how a conditional offer of employment can be rescinded. The conditional offer to an applicant can be rescinded based on: 

  1. The results of a criminal background check conducted in accordance with the requirements of the FCA;
  2. The results of a medical examination when permitted by the Americans with Disabilities Act, as amended; or
  3. Other information the employer could not have reasonably known before the conditional offer if the employer can show as an affirmative defense that, based on the new information, it would not have made the offer regardless of the results of the criminal background check. 

The guidance does provide clarification regarding the consideration or inquiry of “non-convictions” which are characterized as “completely protected.” “Non-convictions” that may not be considered include, but are not limited to: 

  • Cases where no criminal charge was brought, or the prosecutor declined to prosecute following an arrest.
  • Criminal charges that were resolved in favor of the individual, including when 1) all charges were dismissed; the individual was acquitted on all charges; or 2) the verdict was set aside or the judgment was vacated by the court and no new trial was ordered, nor is any appeal by the prosecution pending.
  • Cases that were adjourned in contemplation of dismissal (unless the order to adjourn in contemplation of dismissal is revoked and the case is restored to the calendar for further prosecution).
  • Cases when the person is found to be a youthful (juvenile) offender.
  • Convictions that have been sealed.
  • Cases that resolved in a conviction for an act defined by New York law as a violation, rather than a misdemeanor or felony, even if not sealed, including but not limited to trespass; disorderly conduct; failing to respond to an appearance ticket; loitering; harassment in the second degree; disorderly behavior; or loitering for the purpose of engaging in a prostitution offense.
  • Cases that resulted in a conviction for a non-criminal offense under the laws of another state. 

The restrictions against consideration of non-convictions do not prohibit inquiries regarding or consideration of an applicant’s driving or motor vehicle record. 

More significant changes were made to the application of FCA factors to the review, notice and consideration process to an employer’s consideration of open, pending criminal arrests and charges of applicants, and to consideration of the criminal convictions of current employees. The NYC Fair Chance Factors that are to be applied when considering pending criminal charges of applicants or employees, or convictions of current employees, are as follows: 

  1. The policy of New York City to overcome stigma toward and unnecessary exclusion from employment of persons with “criminal justice involvement”.
  2. The specific duties and responsibilities necessarily related to the employment held by the person.
  3. The bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant or employee’s fitness or ability to perform one or more such duties or responsibilities.
  4. Whether the person was 25 years of age or younger at the time of occurrence of the criminal offense or offenses for which the person was convicted, or that are alleged in the case of pending arrests or criminal accusations, which shall serve as a mitigating factor (emphasis added).
  5. The seriousness of the offense or offenses.
  6. The legitimate interest of the employer in protecting property and the safety and welfare of specific individuals or the general public.
  7. Any additional information produced by the applicant or employee, or produced on their behalf, regarding their rehabilitation or good conduct, including but not limited to history of positive performance and conduct on the job or in the community. 

The amended guidance is here

Articles on the amendments are here and here. 

What do employers need to do? 

Employers should review the amended FCA guidance as well as their workplace policies to make any applicable updates to their screening and hiring processes to remain in compliance. The law firm, Littler Mendelson P.C., suggests that employers should consult employment law counsel versed in the FCA for assistance with these action items to ensure their background check processes comply with the FCA as amended.

July 2021: Reminder: New York Hero Act Model Standards Available

The NY HERO Act requires the state’s Department of Labor (DOL) to create workplace safety standards for airborne infectious disease prevention. Employers are required to either adopt the DOL-issued standard that is relevant to their industry and workforce or to establish their disease prevention plan that must satisfy the minimum requirements set by the legislation.

Employers will be required to post the plan they choose in the workplace and any employers who distribute an employee handbook must include the plan in their handbook and must distribute the plan to all employees after re-opening following a closure due to an airborne infectious disease. Businesses permitted to operate as of the effective date of the legislation must distribute the plan to existing employees as well.

Employers can find the model workplace standards, sorted by industry, at the DOL’s webpage, here.

May 2021 New York HR Legal Updates

New York City Passes Executive Order on Sexual Harassment Reporting Requirements

Update Applicable to:
All employers contracting “human services” in New York, New York.

What happened?
On March 3, 2021, Executive Order No. 64 was passed by New York City Mayor de Blasio.

What are the details?
Executive Order No. 64 was passed into law and took effect on March 3, 2021. The order introduces new sexual harassment reporting requirements on all employers that contract with New York City agencies for “human services.”

“Human services” is defined as services provided to third parties, including social services such as day/foster/home care, homeless assistance, housing and shelter assistance, preventive services, youth services, and senior centers; health or medical services; legal services; employment assistance services, vocational and educational programs; and recreation programs. (See N.Y.C. Admin. Code § 6-129(c)(21).)

With this new order, covered organizations are required to make the following information available to the NYC Department of Investigation (DOI):

  • A copy of the organization’s sexual harassment policies, including complaint procedures.
  • A copy of any complaint or allegation of sexual harassment or retaliation brought by an employee, client, or any other person against the chief executive officer or equivalent principal of the organization, within 30 days of receipt of the complaint.
  • A copy of the final determination or judgment regarding any complaint or allegation.
  • Any additional information the DOI requests to effectuate its review of any investigation and determination.

The information above must be uploaded through the city’s Procurement and Sourcing Solutions Portal (PASSPort). The copies of the complaints or allegations that are raised must be provided to the DOI via the PASSPort system within 30 days of receipt. Any names or other identifying information of individuals, other than the accused that are mentioned in any complaint, final determination, or judgment can be redacted. The DOI reserves the right to request the information that was redacted from the covered organizations after the redacted information is uploaded.

The DOI will be reviewing the complaints or allegations, and gather their findings to provide to the city agencies for their considerations on any contract renewals or changes.

In addition, providers will be required to certify annually in writing that they have filed all required reports or that they have no information to report. While unclear, law firms advise the employer’s sexual harassment policy to be uploaded even in the absence of a complaint. 

The executive order can be read here.

Articles on the order can be found here and here.

More can be read about the PASSPort system here.

What do employers need to do?
To ensure compliance with the new order, covered organizations should revise their sexual harassment policies and implement training as needed. Any employers contracted with New York City agencies should also communicate with them to ensure they are complying when they update their contacts.

 ________________________________________________________________________________

New Workplace Safety Requirements of New York Employers

Update Applicable to:
Employers operating within New York State.

What happened?
On May 5, 2021, Governor Cuomo signed the NY Health and Essential Rights (HERO) Act, passing it into law. However, the governor promised changes to the legislation in the coming days.

What are the details?
The NY HERO Act will require the state’s Department of Labor (DOL) to create workplace safety standards for airborne infectious disease prevention. Employers are required to either adopt the DOL-issued standard that is relevant to their industry and workforce or to establish their disease prevention plan that must satisfy the minimum requirements set by the legislation. Employers will be required to post the plan they choose in the workplace and any employers who distribute an employee handbook must include the plan in their handbook and must distribute the plan to all employees after re-opening following a closure due to an airborne infectious disease. Businesses permitted to operate as of the effective date of the legislation must distribute the plan to existing employees as well.

Employers will be required to permit employees to form a joint labor-management workplace safety committee with employee and employer designees. The committee must be allowed to raise workplace health and safety concerns, review employer workplace safety policies, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards. Each workplace that employs the legislation also includes anti-retaliation protections for employees who feel that the workplace is not safe or not adhering to the relevant plan.

The amendments clarify that employers will not need to create a disease prevention plan until 30 days after the DOL creates its model industry-specific protocols.  Additionally, employers would have 60 days following the DOL publication to provide such safety protocols to their employees. The window for the DOL to publish their standards was also extended an additional 30 days, to July 5, 2021. It is unclear how soon we can expect the NY DOL to have the example standards published. It appears that employers will not be required to establish their disease prevention plan until the DOL issues its standards.

Employees will need to provide an employer with 30 days’ notice and an opportunity to cure a violation before bringing a civil action unless the employee can show that the employer has demonstrated an unwillingness to cure a violation in bad faith. The employee may not bring civil action if the employer cures the alleged violation, as well as if six months pass from the date the employee had knowledge of the violation.

The Act can be found here.

Articles covering the bill and the amendments can be found here and here, respectively.

What do employers need to do?
Employers should monitor the NY DOL’s website (here) for the published industry standards. Then adopt the standards as they are published. Employers who wish to create own standards should adopt the DOL standard in the meantime until own standard is finished and ready to be implemented.

April 2021 New York HR Legal Updates

New York Updates Health Care Personnel COVID-19 Guidance

Update Applicable to:
New York employers operating within the healthcare industry.

What happened?
On April 1, 2021, the New York Department of Health (NY DOH) issued an update to its prior guidance for health care personnel on returning to work following COVID-19 exposure.

What are the details?
The information contained in the updated guidance supersedes any other previous guidance related to fully vaccinated, asymptomatic healthcare personnel (healthcare employees) returning to work after exposure to COVID-19 or travel. Per the update, all healthcare facilities are expected to know which of their staff has been vaccinated. Any vaccinated staff who did not receive the vaccine through their workplace must inform the facility of their vaccination status through the same process the facility uses to maintain information on annual influenza immunizations and tuberculosis tests.

Asymptomatic health care employees who have had “exposure to” or been in “contact” with a confirmed or suspected case of COVID-19 (as defined in the updated guidance), may return to work after completing a 10-day quarantine without testing if no symptoms have been reported during the quarantine period, provided these conditions are met:

  • Health care employees must continue daily symptom monitoring through day 14;
  • Health care employees must be counseled to continue strict adherence to all recommended non-pharmaceutical interventions, including hand hygiene, the use of face masks or other appropriate respiratory protection face coverings, and the use of eye protection;
  • Health care employees must be advised that if any symptoms develop, they should immediately self-isolate and contact the local public health authority and/or their supervisor to report this change in clinical status and determine if they should seek testing.
  • Health care employees exposed to COVID-19 who are working in nursing homes or adult care facilities certified as Enhanced Assisted Living Residences (EALR) or licensed as Assisted Living Programs (ALP) who complete the 10-day quarantine cannot return to their workplace (must furlough) through the 14th day after exposure unless they meet the vaccination or recent SARS-CoV-2 recovery criteria below.

There are further guidelines that may be read in the provided article for the following circumstances:

  • Asymptomatic Health Care Personnel Exposed to COVID-19 Who Are Recovered From SARS-CoV-2
  • Guidelines for Asymptomatic Health Care Personnel and Travel

An article providing a detailed breakdown of the guidelines can be found here.

The guidelines can be found here.

What do employers need to do? New York employers should update their workplace policies as needed to reflect the changes permitted by the state.

March 2021 New York HR Legal Updates

New York Passes COVID-19 Vaccination Paid Leave

Update Applicable to:
All New York Employers.

What happened?
The New York State Senate unanimously voted 62-0 on March 1, 2021, to grant both private and public employees up to four hours of paid leave per injection to receive the COVID-19 vaccine.

What are the details?
The bill amends the New York Labor Law (NYLL) to add Section 196-C, requiring that all private employers provide their employees with a “sufficient period of time,” up to four hours, of paid leave to receive the COVID-19 vaccine. The leave is four hours per injection, meaning employees who receive a two-dose vaccine can potentially be entitled to up to eight hours of paid time off under the law. The leave cannot be charged against any other leave to which the employee is entitled, including the recently enacted paid sick leave requirements. Employees may also use the

The entire period of leave must be provided at an employee’s regular rate of pay. The requirements of the law, however, can be waived by a collective bargaining agreement if it explicitly references NYLL 196-C. The bill also forbids an employer from discriminating against, retaliating against, or interfering with an employee exercising their rights under the law, including requesting paid leave to be vaccinated.

The requirement to provide this leave will expire on December 31, 2022.

The information was provided by Fisher Phillips and Littler Mendelson P.C., whose articles can be found here and here, respectively.

What do employers need to do?
New York employers should read the above information and update their workplace leave policy to accommodate employee’s vaccine needs.

________________________________________________________________________________ 

New York City Issues Final Rule Regarding Religious and Race Hairstyle Discrimination

Update Applicable to:
All New York City Employers.

What happened?
Effective January 30, 2021, the New York City Commission on Human Rights (“Commission”) amended Title 47 of the Rules of the City of New York to provide an example and add exceptions to clarify protections based on race, creed, and religion, related to hair textures, hairstyles, including the use of head coverings, and hair lengths, which are commonly or historically associated with a particular race, creed, or religion.

What are the details?
This Final Rule codifies much of the Commission’s enforcement guidance that was released in 2019 regarding race-based hairstyle discrimination. The Final Rule also sought to codify that hair textures, hairstyles, head coverings, and hair length can be elements of an individual’s religious practices such that discrimination based on hair can function as a proxy for religious discrimination and constitute a form of unlawful stereotyping.

The Final Rule provides that, while a “legitimate health or safety concern” can provide a defense against a discrimination claim, “speculative health or safety concerns may not be used as a pretext for religious discrimination.”  Therefore, the Commission will consider the following factors in determining whether a restriction or prohibition constitutes a pretext for discrimination or is based on legitimate health or safety concerns:

  • the nature of the articulated health or safety concern;
  • whether the restriction or prohibition is narrowly tailored to address the concern;
  • the availability of alternatives to the restriction or prohibition; and
  • whether the restriction or prohibition has been applied in a discriminatory manner.

Notwithstanding the possible defense for health or safety concerns, the Final Rule unequivocally states that “it is not a defense that a restriction or prohibition is based on customer preference or based on a perception that a person’s hair is ‘unprofessional,’ a ‘distraction,’ or inconsistent with a covered entity’s image.”  Thus, the Commission rejects the notion that a “professional image” can serve as an undue hardship defense against a religious discrimination claim based on religious hairstyle or head coverings.  The Commission further rejects “trivial or minor losses of efficiency” as a possible undue hardship defense in this context.

More details about the final rule may be found here.

What do employers need to do?
New York City employers should review the above information and update any applicable workplace practices that may violate this final ruling.

December 2020 New York HR Legal Updates

NY Department of Labor Releases New Proposed Rules for Statewide Paid Sick Leave Program

What happened?
On December 2, 2020, the New York Department of Labor (DOL) issued draft regulations under the New York Paid Sick Leave Law.

What are the details?
The proposed regulations would further define certain terms in the Paid Sick Leave Law, like Domestic Partner, Family Offense, Human Trafficking, and Mental Illness. The regulations would also include additional clarification on what documentation employers may ask for to verify the need to provide Paid Sick Leave. Namely, it clarifies that employer may not require employees to provide documentation of the need to take leave, as a condition to utilize the leave initially.

Employer size is clarified on, but not how most multi-state employer would have wanted. Instead, the regulations simply clarifies that if an employer falls below a Paid Sick Leave threshold, and then goes above another one in the middle of the year, they must provide the higher paid sick leave required of the larger size, throughout the entire year, regardless if they fall back down to the lower employer size bracket.

For example, if an employer starts 2021 with 95 employees, they must allow employees to begin accruing up to at least 40 hours of paid sick leave that year. If, however, the company hires more employees, bringing them up to 100 or more on any day, then, at that point, the employer must increase the maximum annual accrual and usage to 56 hours prospectively. The maximum accrual/usage would not fall back to 40 hours for the rest of the year under any circumstances.

The regulations end by clarifying that employees do not need to work a  flat 30 hours to accrue an hour of Paid Sick Leave, and instead accrue it as they work. An employee working 35 hours a week is not only accruing one hour of paid sick leave a week, for example, and would instead accrue more due to the additional 5 hours worked each week.

An article going more in depth on the changes can be found here.

The proposed regulations can be found at the bottom of the Paid Sick Leave page provided by the State, found here.

What do employers need to do?
New York Employers should review the above information and ensure their Paid Sick Leave policies are in alignment with these proposed regulations. 

_________________________________________________________________________________

NYC Seeking to Eliminate At-Will Employment for Fast Food Industry

What happened?
On December 17, 2020, New York City Council passed amendments to the Fair Work Practices chapter of the New York City Administrative Code, referred to as the “Fair Work Week Law,” that will significantly alter the relationship between covered employers and employees of fast food establishments.

 

What are the details?
Generally speaking the bills would do the following:

An employer would be prohibited from terminating fast food employees’ employment, reducing their hours by 15% of their regular schedule or by 15% of any weekly work schedule, or indefinitely suspending employees, unless the fast food employer has “just cause” to do so, or is compelled to do so by bona fide economic concerns. The bills would require all fast food employers to adopt clear policies relating to all standards of conduct; institute a progressive discipline policy for less-egregious infractions; perform “adequate training” on the employer’s standards; conduct a “fair and objective investigation into the job performance or misconduct”; and, within five days of discharging a fast food employee, provide a written explanation of the “precise reasons” for the action.  For employees whose jobs are terminated due to economic reasons, the bills would require the selection of laid-off employees to be in reverse seniority order and create functional recall rights for a period of up to 12 months.  Employees would have the right to file for arbitration to challenge whether or not an employer had “just cause” for its actions or otherwise complied with the law.

An article breaking down these amendments which also includes links to the amendments themselves, can be found here.  A more recent article, covering the amendments after they passed can be found here.

What do employers need to do?
New York City employers in the fast food industry should consult with their employment attorneys to know what workplace policies they should update

______________________________________________________________________________

New York City Expands Ban-the-Box Initiative

What happened?
On December 10, 2020, the New York City Council passed bill Int. 1314-A, which significantly expands the scope of New York City’s “ban-the-box” law, the New York City Fair Chance Act (FCA).

What are the details?
The changes to the FCA will impact the following subjects 

  • Restrictions on consideration of criminal accusations and arrests pending at time of application
  • Consideration of convictions occurring during employment
  • Non-pending arrests and criminal accusations and adjournments in contemplation of dismissal
  • Violations and non-criminal offenses
  • Restrictions on revocation of conditional offer of employment
  • Affirmative requirement to solicit information for the fair chance act factors

An article going in depth on all of these changes can be found here.

What do employers need to do?
New York City Employers should review the above information and update their hiring practices to bring themselves into compliance with the new restrictions.

November 2020 New York HR Legal Updates

New York Employers Required to Send Additional Warn Notices

What happened?
On November 11, 2020, Governor Cuomo signed into law Assembly Bill (AB) A10674a.

What are the details?
Effective immediately AB A1067a requires employers to send out WARN triggered notices to additional governmental agencies. The new agencies are as follows:

  • The chief elected official of the unit or units of local government and the school district or districts in which the WARN even will occur; and
  • Each locality that provides police, firefighting, emergency medical or ambulance services or other emergency services to the site of employment where the WARN event is occurring.

The regulation currently does not provide what exactly needs to be included in the notices sent to these local governmental bodies. Until, if ever, the regulations are updated with information regarding the content of the notices, employers have been advised to simply send notices that provide the same information that would be required for a federal WARN notice.

An article covering this new regulation can be found here.

What do employers need to do?
Employers with medium to large amounts of employees within New York State should review the above information and update their WARN practices accordingly.

_________________________________________________________________________________

REMINDER: New York and New York City Paid Sick Leave Laws Effective January 1, 2021

What happened?
Both New York State and New York City will have paid sick leave laws going into effect on January 1, 2021.

What are the details?
New York State will be implementing its new statewide paid sick leave program. New York City will be implementing its amendments that will cause the city-wide paid sick leave program to mirror almost exactly, the New York State paid sick leave program.

An article covering New York States paid sick leave program can be found here.

An article covering New York City’s paid sick leave amendments can be found here.

What do employers need to do?
New York employers should remember to update their workplace practice ahead of time to stay in compliance upon the effective date of these laws.

October 2020 New York HR Legal Updates

New York Paid Family Leave Benefits to Increase

What happened?
Benefits for New York State’s Paid Family Medical leave policy will increase starting January 1, 2021.

What are the details?
Starting 2021, qualifying employees will be eligible for up to 12 weeks of job protected paid time off, up from the 10 weeks currently provided.

Employees may use the leave for the following reasons:

  • Bonding with a new child
  • Caring for a family member’s health condition
  • Assisting family with a military servicemember who is deployed overseas

Additionally, in the spring of 2020, the law was amended to cover COVID-related uses. Finally, the cap on the weekly benefit amount will be raised as well to 67% of their average weekly wage, up to $1,450.17.

An article covering these changes and going over New York Paid Family Leave generally can be found here.

What do employers need to do?
New York employers should start looking to update their paid family leave policies in their handbooks. Training may be needed for supervisors and management to ensure proper administration.

_________________________________________________________________________________

New York Issues First Set of Guidance on Statewide Sick Leave Program

What happened?
New York state has updated its website to include guidance on the newly effective paid sick leave program. The guidance includes additional information and an official FAQ.

What are the details?
New York’s paid sick leave started accruing for employees on September 30, 2020. However, they are not eligible to use this paid sick leave until January 1, 2021. New York has finally updated their website to provide additional information to employers, who have up until now only had the legislation to go off of on how to proceed.

The information may be found on the state’s website here.

The very informative FAQ can be found here.

What do employers need to do?
It is highly encouraged for New York employers to review the above links. New York’s sick leave will impact every business operating within the state. Employers should contact their Client Relations Specialist if they would like to make the first steps to setting up a compliant paid sick leave plan.

September 2020 New York HR Legal Updates

New York Paid Family Leave Benefits Increasing January 1, 2021

What happened?
On January 1, 2021, New York’s Paid Family Leave (NYPFL) benefits will be increasing, as well as the employee payroll contribution.

What are the details?
Currently the NYPFL provided to employees is capped at 10 weeks. Come January 1, 2021, this will increase to 12 weeks, the maximum amount granted by this law. The maximum amount of benefits an employee is entitled to while on leave is also increasing. The maximum amount of benefits an employee is entitled to receive while on leave is based on the employee’s average weekly wage (AWW) and the state’s average weekly wage (SAWW). Effective January 1, 2021, the maximum amount of benefits will be calculated based on 67% of an employee’s AWW, up to a cap set at 67% of the SAWW. The SAWW for 2021 is $1,450.17. The maximum weekly benefit in 2021 will be $971.61 per week.

To ensure sufficient funds to cover the increased benefits, the employee payroll contribution toward NYPFL also will be adjusted on January 1, 2021 to 0.511% of an employee’s gross wages each pay period, capped at a maximum annual contribution of $385.34.

New York has provided an outline of everything changing going into the new year, as well as an FAQ about the paid family leave, found here.

What do employers need to do?
New York employers should be aware of the increases to the family leave and adjust their workplace practices to accommodate the possibility of extended employee absences.

 ________________________________________________________________________________

New York City Passes Paid Sick Leave Amendments Effective September 30, 2020

What happened?
On September 23, 2020, the city council of New York City signed a new set of amendments for the city’s paid sick leave program. This reached Mayor de Blasio on September 28, 2020, which was promptly signed.

What are the details?
The amendments bring the existing requirements for employers in the city to match the upcoming paid sick leave that will be statewide in New York. The amendments, however, will not share the same effective date as the statewide sick leave program. Instead, these amendments will be fully effective September 30, 2020. The New York State sick leave program will only begin accruing on September 30, 2020 effectively using the sick leave on January 1, 2021. Whereas in New York City, the employees will enjoy the full benefits of the change as soon as the changes are effective.

The following are significant changes from the existing paid sick leave program that the city was running:

  • Employers will now be required to provide the employee’s amount of leave accrued and used during a pay period and their total balance of accrued leave via a pay statement or other form of written documentation provided to employees each pay period.
  • The Department of Consumer and Worker Protection (formerly the Department of Consumer Affairs) will provide a notice for employers to provide employees upon their date of hire and again on the effective date of these amendments. Additionally, the department will provide a workplace poster that employers will be required to be posted in a conspicuous location in the workplace.
  • The definition of employee no longer requires a minimum of 80 hours of working inside the city to be eligible for the leave. Instead, if the employee performs any work for any amount of time in the city, they will be eligible for the paid sick leave.
  • Large employers (100 or more employees) will now have to allow employees to accrue up to 56 hours a year, as opposed to the previous upper limit of 40 hours for all employers.
  • Employers who require reasonable documentation (for the use of paid sick leave) as permitted by the city law will be required to reimburse employees for all reasonable costs or expenses incurred for the purpose of obtaining such documentation.
  • Employees will now be able to use their paid sick leave as it accrues. Previously, employers could withhold the use of accrued sick time for the duration of a 120-day probationary period.
    • Employers will not be required to provide any additional time to employees past the yearly maximum previously enforced. For example, a large employer will now need to provide 56 hours of paid sick leave to employees, but if an employee has already used 40 hours from before the passing of the increase, the employee will only receive the additional 16 hours, and not a complete refresh on their annual use limit. Employers with 100 or fewer employees will enjoy the same protection (i.e., if an employee has already used their 40 hours allotted to them, they may not use more once the amendments are effective).
    • Employees of large employers who will now be accruing up to 56 hours of paid sick leave, may not, unless noted otherwise by the employer, use their additional 16 hours of paid sick leave until January 1, 2021.
    • Employees of an employer with less than five employees who made more than $1 million in the previous year may not use their paid sick leave until January 1, 2021, unless otherwise noted by their employer.
  • Small employers (with less than five employees) who had a net income of $1 million or more in the previous tax year will now need to provide paid sick leave. Previously, all small employers regardless of income could provide unpaid sick leave.
  • Instances of domestic violence are now covered by the safe time provisions of the leave.
  • The amendments are set up in a way that the New York City sick leave will always defer to the more restrictive standard created between the state’s New York paid sick leave, and the city’s sick leave.

Note: While these changes are effective September 30, 2020, they will not be enforced until the Department of Consumer and Worker Protection provides the required documents for employers (workplace poster and employee notices). There is no current ETA on when they will be done.

The press release of the mayor signing this legislation can be found here.

The legislation can be found here.

An article summarizing the changes can be found here.

What do employers need to do?
Clients with employees in New York City should reach out to their Client Relations Representative and HR contacts to start getting their sick leave plans in compliance.

 ________________________________________________________________________________

New York Paid Sick Leave to Begin Accruing

New York’s Paid Sick leave program will begin accruing sick leave for all eligible employees on September 30, 2020. Employees will not be able to use this sick leave until January 1, 2021. Employers should be sure that they are tracking hours worked by employees and accruing the correct amount of paid sick time for their employees.

Articles going over this law can be found here and here.

 ________________________________________________________________________________

Upcoming Voting Leave Requirements

New York State requires that employers place a posting educating employees about their voting leave rights 10 days before an election occurs. The upcoming election will be held on November 2, 2020, meaning employers should look to have the required posting placed by October 22, 2020. 

The required posting, provided by the state of New York, can be found here.

August 2020 New York HR Legal Updates

New York State Sick Leave Effective September 30, 2020

What happened?
The date in which employers in New York state will be expected to provide paid sick leave to their employees has almost arrived.

What are the details?
On September 30, 2020, New York’s new statewide permanent sick leave goes into effect. This will require employers to provide unpaid and paid sick leave benefits to their employees. Under the paid sick leave law employers with:

  1. Fewer than four employees and a net income of $1 million or less in the previous tax year must provide each employee with up to 40 hours of unpaid sick leave in each calendar year;
  2. With four or fewer and a net income greater than $1 million in the previous tax year, or between five and 99 employees in any calendar year, must provide each employee with up to 40 hours of paid sick leave each calendar year, and
  3. With 100 or more employees in any calendar year must provide at least 56 hours of paid sick leave in each calendar year.

Employers are allowed to frontload the employee’s yearly allotment. If they decide to not frontload, employees must accrue at a rate no less than one hour for every 30 hours worked. Employers may restrict the use of any accrued sick time to January 1, 2021. Additionally, the law will require employers to maintain accurate payroll records for up to six years, showing the amounts of paid sick leave provided to any employees.

A more detailed breakdown of the New York paid sick leave can be found here.

The budget bill that introduces this paid sick leave program can be found here. Search for “Part J” to find the relevant information.

What do employers need to do?
Employers should begin training their employees on their rights for paid sick leave and management on how to administer the paid sick leave. Employers should review their recordkeeping processes to accommodate the six-year requirement of recordkeeping for payroll information.

 ————————————————————————————————————–

Suffolk County, New York Expands Anti-Discrimination Definitions

What happened?
Suffolk County, New York has expanded their anti-discrimination definitions in their human rights law to include race and religious discrimination based on hairstyle, hair texture, and religious garments.

What are the details?
Suffolk County’s human rights law prohibits discrimination based on gender and “group identity.” Prior to the amendment, the law defined “group identity” as the “actual or perceived race, color, creed, age, national origin, alienage or citizenship status, gender, sexual orientation, disability, marital status, or familial status of any individual, as well as the actual military status of any individual.” The amendment adds “visible traits of an individual, such as natural hair texture, protective hairstyles and the donning of religious garments or items,” to the definition of “group identity.” Protective hairstyles can include hairstyles like braids, locks, and twists.

The Commission on Human Rights has provided guidance on race discrimination on the basis of hair.

What do employers need to do?
Employers in Suffolk County should update their anti-discrimination policies to reflect the additions made by the amendment.