1. NY Substantially Expands Whistleblower Law
2. NYC and NYS Pass Salary Transparency Laws
3. Federal Government Ends Forced Arbitrations of Certain Sexual Conduct Claims
4. NYC Employers Who Use AI in Hiring Must Now Conduct Bias Audits
5. New Limits on Nondisclosure and Non-Disparagement Clauses 
6. NY Extends Paid Leave for COVID-19 Vaccinations through December 31, 2023
7. NY Requires Notice of Electronic Monitoring of Employees
8. NY Updates Harassment, Discrimination, and Retaliation Laws
9. New NY Law Protecting Absences in New York State
10. Updates to New York State Paid Family Leave

1. NY Substantially Expands Whistleblower Law

Effective January 26, 2022, New York State substantially expanded its whistleblower statute in several significant ways.  Under the old law, an employer could not retaliate against an employee who reported an actual violation of a law that posed a “substantial and specific danger” to the public at large.  The new law does not limit the violation to an actual violation or to a violation that affects the public at large, but instead expands this definition to prohibit retaliation against an employee who:

[D]iscloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of a law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.

The law also expands the definition of employee to include former employees and independent contractors.  Whistleblowers can recover front pay, civil penalties not to exceed $10,000, and punitive damages as well as attorneys’ fees and other remedies. The period to bring an action is now two years, up from one year. 

ACTION: Employers must notify their workforce of the revised law by conspicuously posting notice and should promptly revise their whistleblower policy to create clear reporting procedures.  The revisions should be addressed in any training provided to executives and supervisors.

2. NYC and NYS Pass Salary Transparency Laws

Despite considerable pushback from the business community, New York City’s pay transparency law went into effect on November 1, 2022.  Employers with four or more employees - where at least one of the employees works in New York City — must include a salary range for every job, promotion or transfer opportunity in New York City that is posted.  The law affects postings on internal bulletin boards, internet advertisements, printed flyers distributed at job fairs and/or newspaper or media advertisements.  On December 21, 2022, New York State followed suit with Governor. Hochul signing into law a similar statewide pay transparency law, effective September 17, 2023. 

Postings must include a good faith estimate of the minimum and maximum salary range that the employer “honestly believes” it is willing to pay “at the time” the job is listed.  The range cannot be open-ended.  Salary includes base wage or rate of pay but not other forms of compensation, such as benefits or bonuses.  In addition, under the New York State law, postings must include a job description if one exists, and employers must maintain records, including compensation history.  If a position is commissioned-based, the posting must so state.  The Department of Labor has been tasked with promulgating rules to provide further guidance.  We will continue to keep you informed.

New York City employers that fail to comply with the law may have to pay monetary damages to the affected employees and civil penalties of up to $250,000; however, no penalty will be assessed against the first violation if cured within 30 days. 

ACTION: Employers should review their postings to make sure they comply with the law.  In addition, employers should conduct an internal pay audit to determine accurate salary ranges, as well as review existing employee salaries to ensure consistency with the posted ranges.  In anticipation of the effective date of the NYS law, employers should review job descriptions and maintain supporting records.

3. Federal Government Ends Forced Arbitration of Certain Sexual Misconduct Claims

In March 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”), amending the Federal Arbitration Act.  The Act does not apply retroactively. 

The Act permits employees alleging sexual assault or sexual harassment to elect to litigate their claims in court, even if they have signed arbitration agreements.  The Act also prohibits the waiver of class or collective actions of such claims.  Arbitrability will be determined by a court, not an arbitrator.   

ACTION: Employers should review and amend their arbitration policies accordingly.

4. NYC Employers Using AI in Hiring Must Conduct Bias Audits

Effective April 15, 2023, New York City employers that use “automated employment decision tools" (“AEDT”) to “substantially assist or replace discretionary decision making for employment decisions,” must now conduct a bias audit within one year of utilizing the AEDT. Among other things, employers can use AEDT to assess a candidate’s likelihood of success, rate a candidate’s skillset(s), evaluate aptitude, categorize a resume based on key words, or score candidates to determine culture fit.

A “bias audit” is defined as an impartial evaluation by an independent auditor that includes “the testing of an [AEDT] to assess the tool’s disparate impact on persons who fall into a category required to be reported by an employer on an EEO-1 filing.”  EEO-1 filings require certain employers to submit workforce data by race, ethnicity and sex, among other categories. 

The law was supposed to go into effect on January 1, 2023, but implementation was pushed back to April 15.  The Department of Consumer and Worker Protection will propose rules to implement the new law.

The law also requires employers to notify employees and candidates that AEDT is being used in the decision-making process and post the results of the bias audit.  Employees/candidates can request an alternative selection process or accommodation based on a disability. 

Employers will be subject to a $500 fine for the first violation, and between $500 and $1,500 for subsequent violations.  Each day AEDT is used without being compliant is a separate violation.  Failure to provide notice is a separate violation. 

ACTION: Employers who use AEDT should revisit their hiring practices to ensure compliance with the new law as of April 15, 2023. 

5. New Limits on Nondisclosure and Non-Disparagement Clauses

President Biden signed the Speak Out Act into law on December 7, 2022, limiting the use of pre-dispute nondisclosure and non-disparagement clauses in connection with sexual harassment and sexual assault claims. Notably, the law does not limit the enforceability of these clauses when settling sexual harassment or assault claims; it only limits the use pre-dispute.  The federal law, however, does not nullify New York State limitations on nondisclosure clauses in severance and settlement agreements concerning harassment and discrimination claims.

The law applies to claims filed on or after December 7, 2022.

ACTION: Employers need to review employment agreements, offer letters, confidentiality and other restrictive covenant agreements that employees agree to upon hire and revise nondisclosure and non-disparagement clauses.  Agreements containing these clauses concerning the settlement of post-dispute sexual assault or harassment claims are still enforceable, except that New York employers continue to be subject to certain obligations concerning confidentiality of harassment and discrimination claims in settlement and severance agreements, including employees having to affirmatively waive objections to confidentiality. 

6. NY Extends Paid Leave for COVID-19 Vaccinations through December 31, 2023

In July 2022, Governor Hochul signed legislation extending paid leave for COVID-19 vaccinations through December 31, 2023. The law requires New York employers to provide their employees with a paid leave of absence for a “sufficient period of time, not to exceed four hours” per vaccination for COVID-19, including booster shots.  The leave must be paid at the employee’s regular rate of pay and cannot be counted against any other leave the employee is otherwise entitled to, including New York State Paid Sick Leave.

The law, which was signed by Governor Cuomo in March 2021, was originally set to expire on December 31, 2022.  The New York City law requiring employers to provide leave for employees to vaccinate their children expired on December 31, 2022 and was not extended.

ACTION: Employers should review and amend their COVID-19 vaccination leave policies accordingly.

7. NY Requires Notice of Employees’ Electronic Monitoring

Effective May 7, 2022, employers who engage in electronic monitoring of employee communications are required to provide notice to their employees of such monitoring. The law provides that the notice should inform employees that:

[A]ny and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage 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 may be subject to monitoring at any and all times and by any lawful means.

Under the law, any individual or entity regardless of size that maintains a place of business in New York and engages in electronic monitoring of employee communications must provide this notice to all new hires in writing or electronically, and the employee must acknowledge the notice in writing or electronically.  Employers must also post the notice in a conspicuous place that is readily available to their employees.

Violations are subject to civil penalties of $500 for a first offense, $1,000 for a second offense, and $3,000 for a third offense and each subsequent offense.

ACTION: Employers should update existing monitoring disclosure policies to comply with the new law.  Employers that do not have such a policy should consider implementing one.  Employers should update their onboarding processes and their postings to address the requirements of the new law.

8. NY Updates to Harassment, Discrimination, and Retaliation Laws

There were a few notable amendments to New York State’s harassment, retaliation, and discrimination laws in 2022.

Effective March 16, 2022, Governor Hochul signed into law several amendments to the New York State Human Rights Law (NYSHRL).  First, employers are barred from releasing an employee’s personnel file because the employee opposed any conduct prohibited by the NYSHRL, except in cases where the release is necessary to respond to a complaint, civil or criminal action, or judicial or administrative proceeding. Second, the definition of “employer” under the NYSHRL was expanded to include public employers, specifically the State of New York, and its cities, counties, towns, villages, and other political subdivisions.  Third, effective July 14, 2022, New York established a toll-free confidential hotline for employees with complaints of workplace sexual harassment.  Employers are required to include the hotline, 1-800-HARASS-3 (1-800-427-2773), in their anti-harassment and non-discrimination policies, as well as any required workplace postings. 

ACTION: Employers should review their harassment, retaliation, and discrimination policies, as well as workplace postings, to ensure compliance with these new laws.

9. New NY Law Protecting Absences in New York State

On November 21, 2022, Governor Hochul signed into law a bill that protects employees’ use of legally protected absences.  The new law amends the New York State Labor Law to expressly prohibit employers from penalizing employees based upon the employee’s use of “any legally protected absence pursuant to federal, local or state law.”  Legally protected absences include leave under the Family and Medical Leave Act, the New York State Paid Sick Leave Law and the New York City Earned Safe and Sick Time Act, among other federal, state, and local laws. 

The new law will take effect on February 20, 2023.

ACTION: Employers should consult knowledgeable employment counsel prior to terminating employees in violation of no-fault or points-based attendance policies.  In addition, such policies should be reviewed to ensure compliance with the new law. 

10. Updates to New York State Paid Family Leave

Among other things, employees may take up to 12 weeks of employee-funded leave under New York State Paid Family Leave (PFL) to care for a close relative with a serious health condition.  Effective January 1, 2023, the definition of “family members” under the law was expanded to include “siblings.”  Prior to the amendment, the PFL law defined “family member” to include a child, parent, grandparent, grandchild, spouse, or domestic partner.  Sibling is defined in the amendment as “a biological or adopted sibling, a half-sibling or stepsibling.”

In addition, the maximum payroll contribution from employees’ weekly wages has decreased from 0.511% in 2022 to 0.455% in 2023, capped at an annual maximum contribution of $399.43 (down from $423.71 in 2022).  Eligible employees who take PFL will still receive 67% of their average weekly wage, capped at 67% of the New York State Average Weekly Wage (NYSAWW).  The NYSAWW for 2023 rose to $1,688.19 (up from $1,594.57 in 2022), making the maximum weekly benefit an employee can receive $1,131.08. 

ACTION: Employers should review and amend their New York State PFL policies accordingly.