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May 2022: New York City Council Passes Amendment to Pay Transparency Law

Update Applicable to:
All employers with four or more employees in New York City.

What happened?
In our previous communication, we informed you about the proposed amendment to the New York City Pay Transparency Law that was passed on December 15, 2021. This is an update to that law.

What are the details?
After the New York City Committee on Civil and Human Rights (Committee) hearing on April 5, 2022, it became clear that the Committee would not adopt the initially proposed amendment of the NYC pay transparency law, which requires that NYC employers with four or more employees include the salary range of the position in job postings. However, the Committee proposed a second amendment that was passed by the NYC Council on April 28, 2022.

The new amendment postpones the effective date to November 1, 2022, and also clarifies for employers that both hourly wage and salaried jobs are subject to the statute.

The amendment also eliminates the broad private right of action available under the original law. Under the revised version, only current employees may bring an action against their employer for non-compliance. Based on the change, applicants likely cannot file a private right of action for violations. However, the New York City Commission on Human Rights (CCHR) will still have the authority to enforce violations applicable to applicants.

Further, under the amended law, first-time violators will not be subject to any monetary penalties, so long as they correct the violation within 30 days, presumably by updating the relevant job advertisement.

However, the amended version incorporates guidance from the CCHR regarding the applicability of the law to remote job positions. Specifically, the amended law provides that the salary disclosure requirement does not apply to positions that “cannot” or “will not” be performed, at least in part, in New York City. Stated differently, if any part of an advertised job can theoretically be performed in New York City, then the salary range for the position must be disclosed in the advertisement.

For more information, please see the links below:

NYC Pay Transparency

Original NYC Salary Transparency Factsheet

Vensure Legal Update (4/5/2022)

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What do employers need to do?
Employers should review the links provided above and should take advantage of the extended time to adjust their job advertisement policies.

May 2022: New York Electronic Monitoring Law Reminder

Update Applicable to:
All employers who monitor their employees electronically in the state of New York

What happened?
In our previous communication, we informed you that Senate Bill S2628 (SB S2628) was signed into law, which will require employers to provide notices concerning the electronic monitoring of employees. This is an update to that law.

What are the details?
Effective since May 7, 2022, employers are required to provide prior written notice to newly hired employees if they intend to monitor or otherwise intercept telephone conversations or transmissions, email, or internet access or usage of or by an employee by any electronic device or system, including, but not limited to, the use of a computer, telephone, wire, radio, or electromagnetic, photoelectronic, or photo-optical systems.

The notice must be:

  • Provided in writing;
  • In an electronic record, or in another electronic form; and
  • Acknowledged by each employee either in writing or electronically.

The law requires that employees acknowledge receipt of the notice, “either in writing or electronically.” Employers must post a notice of electronic monitoring in a conspicuous place that is readily available for viewing by its employees who are subject to electronic monitoring.

Vensure has written a notice for electronic monitoring, and it can be found on Vensure’s Client Center.

For more information, please see the links below:

NY Client Center

Vensure’s Previous Update (1/25/2022)

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What do employers need to do?
Employers should review the links provided above and post the required notice in a conspicuous location next to the labor law poster.

This notice has been uploaded to all instances of Prism for clients who utilize the electronic onboarding. Clients who do use electronic onboarding can click this link to obtain the notice for their paper packets.

April 2022: New York City Salary Transparency Reminder, City Council Proposes Amendments

Update Applicable to:
All employers with four or more employees and at least one who works in New York City

What happened?
In our previous communication, we informed you about the New York City Pay Transparency Law that was passed on December 15, 2021. This is an update to that law.

What are the details?
On March 28, 2022, the New York City Commission on Human Rights released official guidance regarding the upcoming pay transparency law, Int. 1208-B, which requires all advertisements for jobs, promotions, and transfer opportunities for positions performed in the city to include a minimum and maximum salary range. This law was passed by the City Council and will go into effect on May 15, 2022.

In addition, amendments to the law have recently been introduced in the New York City Council (T2022-5021 (Bill)) which, if passed, will modify the law in important ways, including delaying its effective date and further clarifying its requirements.

Covered Employers

The law currently applies to all New York City employers that employ four or more persons with at least one person working in the city. The bill would increase the threshold to employers that employ 15 or more persons. Under both, employers must include independent contractors furthering the employer’s business as well as an employer’s parent, spouse, domestic partner, or child working for the employer in the count of persons when determining whether the law applies to their business. The guidance clarifies that all employees regardless of work location must be counted and that only one must work in the city for an employer to be covered.

Clarification of the Term “Salary”

The law requires employers to post the minimum and maximum “salary” that the employer in good faith believes it would pay for any advertised position. The guidance explains that the term “salary” encompasses base wages (e.g., $15 per hour) and other rates of pay (e.g., $50,000 annual salary) and states that the range cannot be open-ended (e.g., $15 per hour and up). The bill, however, would amend the law to explicitly make clear that the requirement applies to non-exempt employees who are paid an hourly wage, by stating that employers must post the minimum and maximum “hourly or salary compensation… .”

The guidance further explains, “alary does not include other forms of compensation or benefits offered in connection with the advertised ” and gives examples of compensation that does not need to be included, such as:

  • commissions, tips, bonuses, stock, or the value of employer-provided meals or lodging
  • overtime pay
  • benefits (including group health benefits, retirement benefits, and paid or unpaid time off)
  • severance pay

In other words, only the base wage or salary for the advertised position must be stated.

Remote Positions

The guidance advises employers (irrespective of location) to abide by the law, “when advertising for positions that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home.” Thus, employers who have at least one employee in New York City should remain mindful of the need to post salary ranges even for remote positions, if the job might be filled by a city resident.

The Bill proposes to amend the law to expressly exclude “ositions that are not required to be performed, at least in part, in the city of New York.” This additional exclusion appears to eliminate the need to include the pay transparency notice for fully remote positions where work is not required to be performed in New York City, which appears to address concerns raised by Colorado’s similar pay transparency law.

Other Exceptions

The bill also proposes to amend the law to eliminate the requirement for posting a salary range when the posting is a general “help wanted” sign without reference to a particular position.

Effective Date
As it stands, the law becomes effective beginning May 15, 2022. The bill would push back this effective date to November 1, 2022.

The City Council is holding a hearing on April 5, 2022, to further discuss the bill.

For more information, please see the links below:

Int. 1208-B

Int. 0134

Salary Transparency Guidance

Vensure Legal Update (December 28, 2021)

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What do employers need to do?
Employers should review the links provided above and per the recommendation of our source, Epstein Becker Green, employers should also review their current protocols for internal and external positions, including the relevant factors they rely on for determining compensation.

April 2022: New York Governor Signs Bill Adding More Anti-Retaliation Protections for Employees

Update Applicable to:
All employers in the state of New York

What happened?
On March 16, 2022, Governor Hochul signed Senate Bill S5870 (SB S5870) into law, which adds more anti-retaliation protections for employees.

What are the details?
Effective immediately upon signage, employers are now prohibited from disclosing the personnel file of an employee who opposed unlawful discrimination, filed a complaint, or testified or assisted in a legal proceeding to an unauthorized third party for any reason. This new provision does not define the term “personnel file.” Generally, however, it includes:

  • performance evaluations;
  • complaints from guests or co-workers;
  • disciplinary forms;
  • attendance records;
  • forms that relate to transfers and promotions or demotions; and
  • termination forms.

According to the Senate’s justification for the bill, retaliation frequently appears in the form of leaking an employee’s personnel file with the intent to disparage or discredit a victim or witness of discrimination or harassment in the workplace. This new law now makes clear that the release of a personnel file because an employee filed a complaint or cooperated with an investigation counts as retaliation and is completely prohibited under the New York State Human Rights Law (SHRL).

However, the law explicitly states that there is no violation of the law and it is not retaliatory for an employer to disclose personnel records in the course of commencing or responding to a complaint in a civil or criminal action or any other judicial or administrative proceeding as permitted by applicable law.

For more information, please see the links below:

Senate Bill S5870 (SB S5870)

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What do employers need to do?
Employers should review the links provided above and review their policies relating to how they manage employee’s personnel files.

It is also recommended by the law firm, Fox Rothchild, that employers should discuss this new law with management and human resources to ensure that they understand the legal consequences of disclosing personnel records in retaliation against an employee who opposes unlawful discrimination.

March 2022: New York HERO Act No Longer in Effect

Update Applicable to:
All employers in the state of New York

What happened?
In our previous communication, we informed you about the New York HERO Act that was extended from February 15, 2022, to March 17, 2022. This is an update to that article.

What are the details?
The New York Health Commissioner has allowed the designation to expire due to the COVID-19 infection and hospitalization rates decreasing, and the lifting of the HERO Act mask mandate and other preventative measures in New York.

Effective March 18, 2022, employers are no longer required to implement their Disease Exposure Prevention Plan under the HERO Act, including daily health screenings and other requirements. However, employers must continue to maintain their safety plans in the event of a later designation, but no longer need to activate them.

For more information, please see the links below:

NYS Department of Health Announcement

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What do employers need to do?
Employers should review the links provided above and continue to maintain their safety plans in case of a later designation per the New York State Department of Health.

Vensure encourages employers to reach out to their local health departments in case of any specific rules or mandates that are in effect still.

March 2022: New York Enacts New laws to Strengthen Employee Harassment Protections

Update Applicable to:
All employers in the state of New York.

What happened?
On March 16, 2022, Governor Hochul signed Assembly Bill 2035 (AB203) and Senate Bill 5870 (SB5870) into law.

What are the details?
Effective July 14, 2022, the New York State Division of Human Rights (NYSDHR) will be required to establish and maintain a toll-free, confidential hotline to provide assistance to employees complaining of workplace sexual harassment. Employees who call this hotline will be assisted by pro bono attorneys recruited by the NYSDHR.

Information regarding the hotline will be added to all required workplace posters and sexual harassment materials by the NYSDHR in collaboration with the New York Department of Labor. The hotline will not extend to other forms of discrimination or harassment covered under the New York State Human Rights Law (NYSHRL).

Effective immediately, the anti-retaliation provisions of the NYSHRL specifically prohibit employers from disclosing or releasing an employee’s personnel file in retaliation for opposing unlawful workplace harassment or discrimination or for initiating or participating in complaint procedures (except where necessary to respond to or defend a civil or criminal action or in a judicial or administrative proceeding).

The law was further amended to permit the Attorney General to commence a proceeding against an employer upon information and belief that the employer has or is about to violate this new provision.

For more information, please see the links below:

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Assembly Bill 2035 (AB203)

Senate Bill 5870 (SB5870)

What do employers need to do?
Employers need to review the links above, continue to take measures to ensure their workplaces are free from discrimination and harassment, as well as review, revise, and implement policies and trainings with an employment attorney to ensure compliance.

March 2022: New York State Healthcare Worker COVID-19 Booster Deadline Will Not Be Enforced Temporarily

New York State Healthcare Worker COVID-19 Booster Deadline Will Not Be Enforced Temporarily

Update Applicable to:
All employers who employ healthcare workers in the state of New York

What happened?
On February 18, 2022, the New York Department of Health issued a press release stating that they will delay the deadline for healthcare workers to become boosted against COVID-19.

What are the details?
The New York Department of Health stated that to avoid potential staffing issues and to allow New York healthcare workers more time to become boosted against COVID-19, the booster requirement that was to apply to all healthcare workers eligible to receive a COVID-19 booster shot will not be enforced on February 21, 2022, as originally announced.

The booster shot requirement was originally imposed when the state’s regulation requiring COVID-19 primary vaccinations, 10 NYCRR 2.61, was amended earlier this year to require a booster shot or supplemental doses of vaccine, as recommended by the CDC. The state subsequently updated its Frequently Asked Questions (FAQs) Regarding the Prevention of COVID-19 Transmission by Covered Entities Emergency Regulation to, among other things, clarify when a booster is recommended:

Q: If CDC Recommends a booster five months after the primary series, and five months after the primary series is April 1, 2022, what is the date by which personnel must get the booster?

A: Personnel have 30 days from the day they become eligible, so personnel in this example must get the booster by May 1, 2022. But see FAQ #26 below.

Q: Are there personnel who are not eligible for a booster or supplemental dose exactly five months after the primary series?

A: Yes, facilities may have to determine on a case-by-case basis when personnel should have received a booster or supplemental dose as recommended by the CDC. For example, certain personnel may need a temporary medical exemption from receiving a booster in connection with having tested positive for or having been treated for COVID-19. In such cases or other cases that require interpretation of CDC recommendations, personnel may not be eligible for the booster five months after the primary series. Facilities may have to exercise operational discretion to determine when personnel are eligible for a booster, provided that they require and communicate to their personnel that effective immediately, personnel must have received a booster or supplemental dose as recommended by the CDC, absent receipt of a medical exemption, and they have a reasonable system for documenting compliance with this requirement.

The state will reassess in three months whether additional steps are needed to increase the booster rate among healthcare workers.

For more information, please see the links below:

New York Department of Health Press Release

Healthcare Worker Booster Requirement FAQs

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What do employers need to do?
Employers should review the links provided above and continue their best to ensure their employees’ safety and compliance with the law by referring to their local health departments.

February 2022: New York Department of Health Extends NY HERO Act

Update Applicable to:
All employers in the state of New York

What happened?
In our previous communication, we informed you about the New York HERO Act that was extended from January 15, 2022 to February 15, 2022. This is an update to that article.

What are the details?

On February 15, 2022, the New York State Department of Health (NYSDOH) extended its designation of COVID-19 once again through March 17, 2022.

This means that employers must continue implementing their respective Disease Exposure Prevention Plan under the HERO Act, including daily health screenings, among other requirements.  However, even with the designation in place, masking is no longer strictly required for most employers after the New York Department of Labor issued a revised model Disease Exposure Prevention Plan under the HERO Act.

On or before March 17, 2022, the NYSDOH Commissioner will review the level of transmission of COVID-19 in the state and determine whether to continue the designation. 

For more information, please see the links below:

New York Department of Health Press Release

NY HERO Act Website

NY HERO Act Disease Exposure Prevention Plan

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What do employers need to do?
Employers should review the links provided above and continue/reinstate their Disease Exposure Prevention Plan under the HERO Act until more updates from the NYSDOH are released.

February 2022: New York Lifts Mask and Vaccination Mandate

Update Applicable to:
All employers in the state of New York

What happened?
The mask-or-vaccine mandate has been lifted for the state of New York.

What are the details?
Effective February 10, 2022, statewide indoor business mask-or-vaccine requirements will no longer be enforced and will remain optional for businesses, local governments, and counties to enforce.

On February 10, 2022, the New York State Department of Labor published a revised HERO Act Model Plan which provides that “if indoor areas do not have a mask or vaccine requirement as a condition of entry, appropriate face coverings are recommended, but not required.”

New York employers remained covered by the NY HERO Act, which, through at least February 15, 2022, requires all employees to wear masks unless everyone on-site (not just employees) is fully vaccinated.  This requirement remains in place as long as the Health Commissioner continues to designate COVID-19 as highly transmissible and the current designation is in place through February 15

For more information, please see the links below:

Governor Hochul Announcement

New York Department of Health Designation Extension Order (January 15)

NY HERO Act Model Plan

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What do employers need to do?
Employers should review the links above, contact their local county/city health departments to ensure they are in compliance and to ensure the safety of their employees.

February 2022: New York City Passes Bill Granting Paid Sick Leave to Parents

Update Applicable to:
All employers in New York City

What happened?
On November 23, 2021, the New York City Council passed a bill titled “Introduction No. 2448-2021,” permitting employees who are parents to take paid time off to accompany their children when they receive COVID-19 vaccinations.

What are the details?
Effective December 24, 2021, Employers are required to provide employees who are parents or legal guardians of a child with four hours of paid COVID-19 child vaccination time, per injection, and per child (Child Vaccination Leave).

An employee who is a parent may use Child Vaccination Leave to either:

  • accompany the child to get a COVID-19 vaccine; or
  • care for their child who is experiencing temporary side effects from vaccination. 

To be eligible, the employee’s child must be under 18 or a child of any age who is incapable of self-care because of a mental or physical disability. 

Child Vaccination Leave is in addition to any existing sick leave provided to the employee, as well as any leave to which the employee is entitled under New York law for their own COVID-19 vaccinations.

Employers cannot require covered employees to work additional hours to make up for the time missed or find a replacement to cover their shifts.  However, employers may require up to seven days of “reasonable notice” of the need to use Child Vaccination Leave if such need is foreseeable.  An employer can request reasonable documentation showing the child’s receipt of the COVID-19 vaccination injection within seven days of use of the leave.

Child Vaccination Leave must be paid at the employee’s regular rate of pay, without any credits or allowances.  Employees who take Child Vaccination Leave must be paid by the next regular pay date after the leave is taken.  Employees who took Child Vaccination Leave before the bill was enacted must be compensated no later than the next payday after the bill became effective or may have that leave time re-credited.

Employers may be subject to penalties for failing to provide Child Vaccination Leave.  For each instance of Child Vaccination Leave taken by an employee but not compensated by the employer, the employee may be awarded three times the wages that should have been paid or $250, whichever is greater.  Additionally, the employee may be entitled to $500 for each instance when the employer denies Child Vaccination Leave to which the employee was entitled or charges such time against the employee’s paid safe or sick time accruals.

The law expires on December 31, 2022, but employers must pay employees for Child Vaccination Leave taken before then, even if payment would occur after that date.

For more information, please see the links below:

New York Bill

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What do employers need to do?
Employers should review the links provided above and immediately adjust their paid leave policies to be in compliance with the new law.

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