New York City and New York State are ushering in a series of new laws that both employers and employees should be aware of in 2023:
Expanded Whistleblower Protections – New York Labor Law § 740 – Expanded whistleblower protections took effect in 2022. The amendment expanded (i) the scope of protected individuals, (ii) protected activities, (iii) the types of employment-related actions that constitute retaliation, (iv) the time frame within which to bring a timely actions and (v) available remedies. The amendment also requires employers to post notices of whistleblower protections, rights and obligations.
Electronic Workplace Notices - New York Labor Law § 201 – As of December 16, 2022, New York employers must make notices that are physically required to be posted in the workplace available electronically as well. Employers may do this by posting the required notices on their website or by e-mailing the notices directly to employees. Employers must also inform employees that these notices are available electronically.
Siblings Covered Under NYPFLL - New York Paid Family Leave Law (NYPFLL) – As of January 1, 2023, New York’s Paid Family Leave law expands the definition of covered family members to include siblings (biological, adopted, half-siblings and step siblings).
No Employee Discipline For Lawful Absences - New York Labor Law § 215 – As of February 19, 2023, employers may not discipline employees for taking lawfully entitled absences. This amendment prohibits employers from attempting to control employee absences by assessing points, issuing demerits, or docking time when an employee takes protected leave in compliance with federal, state or local laws.
Artificial Intelligence Tools - New York City Local Law § 144 – New York City employers have until April 15, 2023 to ensure compliance with use of automated artificial intelligence tools in employment decisions as seen here.
Nursing Mother Workplace Accommodations - New York Labor Law § 206-c – Amendments to the Nursing mothers in the Workplace Act will go into effect on June 7, 2023. The amendment requires employers to provide a location for employees to express milk that is (i) close in proximity to the work area; (ii) well lit; (iii) shielded from view and (iv) free from intrusion from other persons in the workplace or the public. The room must have, at a minimum, a chair, a small table, nearby access to running water and an electric outlet if possible. The amendment clarifies that some employers may be exempt from this requirement if it would impose an undue hardship on the employer. Employers must also develop, implement, and distribute a written policy regarding the rights of nursing mothers.
NY State Pay Transparency - New York Labor Law § 194-b – New York City began implementing pay transparency laws as of November 2022 and by September 17, 2023 New York state will follow suit. New York state employers will be required to disclose minimum and maximum salaries or hourly wages in job descriptions. They will also be required to note whether the pay is based on commission.
On the federal level, there changes are coming to employment laws as well:
The Speak Out Act – At the end of 2022, President Biden signed into law the Speak Out Act which prevents the enforcement of non-disclosure and non-disparagement clauses related to allegations of sexual assault and/or sexual harassment that were entered into before the dispute arose. While employers may be able to use non-disclosure and non-disparagement agreements to resolve allegations of sexual harassment, they cannot enforce a blanket non-disclosure or non-disparagement agreement prior to any allegation or instance of sexual harassment occurring. This law runs parallel in purpose to the 2022 “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” which similarly bans pre-dispute arbitration agreements and joint-action waivers concerning sexual harassment and sexual assault.
Pregnancy Workers Fairness Act (PWFA) – Effective June 27, 2023, President Biden signed the PWFA which requires employers with 15 or more employees to provide reasonable accommodations to qualified employees for limitations related to pregnancy, childbirth, or related medical conditions.
In addition, there are a few Supreme Court cases to keep an eye on:
FLSA and Highly Paid Employees – On February 22, 2023, the Supreme Court issued their opinion in Helix Energy Solutions Group v. Hewitt. The Court held that in order to be exempt from overtime, highly paid employees must be paid according to the FLSA’s salary basis requirement, not on a daily basis. An employee is considered a bona fide executive, excluded under FLSA’s protections, if the employee meets three tests: (i) the salary basis test requires that an employee receive a predetermined and fixed salary that does not vary with the amount of time work; (ii) the salary level test which requires that preset salary to exceed a specified amount and (iii) the job duties test.
Affirmative Action and Employer Race-Based Preferences – Arguments were heard in the consolidated cases of Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina at the end of 2022. While the cases claim Asian and white people are being discriminated against by using race as a factor in college admissions, it remains to be seen whether the Justices will release a decision broad enough to affect private sector employers’ corporate diversity initiatives and affirmative action for federal contractors.
Where and When Workers Can Strike – On January 10, 2023, arguments were heard in the case of Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174. Glacier Northwest, Inc., a concrete company, sued its employees’ union after workers started a strike when concrete was scheduled to be batched and delivered—they claim this was done to intentionally sabotage business operations. In their decision, the Court will address whether the National Labors Relations Act preempts state court lawsuits against unions for intentionally destroying an employer’s property during a labor dispute.
