It’s been a demanding year in New York for employers. New York employers have had to continuously pivot to meet obligations under new laws and requirements in 2022, with no end in sight as we step into 2023. From New York’s new electronic monitoring law, to New York City’s salary and pay range disclosure requirements, to the newly-delayed enforcement of NYC’s automated employment decision tools law (a brief sigh of relief for employers), new laws are certain to make for a busy 2023 for New York employers. Here are 10 changes employers should know now as we get the ball rolling in 2023.
1. NYC Employers Using Automated Employment Decision Tools Now Have Until April 15, 2023 to Meet New Obligations
The New York City Department of Consumer and Worker Protection (DCWP) granted New York City employers a happy holiday by announcing a delay of enforcement of its automated employment decision tools law (Local Law 144 of 2021) until April 15, 2023.
Until the announcement, New York City employers who use artificial intelligence in employment decision-making were faced with new requirements beginning January 1, 2023–including a prohibition against using automated employment decision tools (AEDTs) unless they took a number of specific steps prior to doing so, not the least of which would be conducting a bias audit of their AEDTs.
On December 15, 2022, DCWP published revised proposed rules for Local Law 144, making several changes to initial proposed rules published by DCWP September 23, 2022.
The initial proposed rules defined or clarified some terms (including “independent auditor,” “candidate for employment,” and “AEDT”), set forth the form and requirements of the bias audit, and provided guidance on notice requirements.
After comments from the public on the initial proposed rules, and after a November 4, 2022 public hearing, the DCWP modified the proposed rules, with changes including:
- Modifying the definition of AEDT (according to DCWP, “to ensure it is focused”);
- Clarifying that an “independent auditor” may not be employed or have a financial interest in an employer or employment agency seeking to use or continue to use an AEDT, or in a vendor that developed or distributed the AEDT;
- Revising the required calculation to be performed where an AEDT scores candidates;
- Clarifying that the required “impact ratio” must be calculated separately to compare sex categories, race/ethnicity categories, and intersectional categories;
- Clarifying the types of data that may be used to conduct a bias audit;
- Clarifying that multiple employers using the same AEDT can rely upon the same bias audit as long as they provide historical data (if available) for the independent auditor to consider in such bias audit; and
- Clarifying that an AEDT may not be used if its most recent bias audit is more than one year old.
DCWP will hold a second public hearing on the proposed rules on January 23, 2022.
For more on the law, see our recent blog Happy Holidays! Enforcement of New York City’s Automated Employment Decision Tools Law Delayed to April 15, 2023.
2. New York Employers with “No Fault” Attendance Policies Subject to Penalties for Disciplining Employees Who Take Protected Leave
Beginning February 20, 2023, New York employers with absence control policies who discipline employees for taking protected leave under any federal, state or local law will be subject to penalties.
Signed by Governor Kathy Hochul on November 21, 2022, S1958A (which amends Section 215 of the New York Labor Law (NYLL)) targets employer policies that attempt to control employee absences by assessing points or “demerits” or docking time from a leave bank when an employee is absent, regardless of whether or not the absence is permissible under applicable law. The amendment prohibits employers in New York from taking these actions when employees take a legally protected absence. Though the law does not prohibit attendance policies that include a penalty point system, legally protected absences cannot be used to deduct from these point systems.
Employers are prohibited from retaliating or discriminating against any employee that makes a complaint that the employer violated the law, and violations can come with sizable penalties. In addition to enforcement by the New York State Department of Labor (NYSDOL), NYLL Section 215 provides a private cause of action for current and former employees to recover monetary damages from employers who have violated Section 215. Monetary damages include back pay, liquidated damages and attorneys’ fees in addition to civil penalties that can be issued by NYSDOL of up to $10,000 for the first violation and $20,000 for repeat violations.
- Employers who currently have policies that assess points or demerits against employees for taking absences under applicable law should review and update the policies to be compliant with the law.
- Employers should train HR professionals, managers and supervisors on the new law.
3. Employers Must Provide Pay Ranges in Job Postings under New York City Pay Transparency Law Now–and under New York State Pay Transparency Law Beginning September 17, 2023
New York City employers are already feeling the impact of having to meet the requirements of New York City’s new pay transparency law (Local Law 32 and its amendment), which went into effect on November 1, 2022. Now, employers all across New York State will also have to comply with salary transparency requirements. Governor Hochul signed New York State’s salary transparency bill (S9427A) into law on December 21, 2022. Employers should begin to prepare now for the law’s September 17, 2023 effective date.
New York City’s law requires New York City employers with four or more employees (with at least one working in New York City) to disclose salary and hourly ranges in any advertisements for jobs, promotions, or transfer opportunities. (See our prior blogs here and here–and for a deeper look at salary and pay range disclosure requirements in job postings across the US, watch our video Employers: All Eyes on Salary and Pay Range Disclosure in US Job Postings).
Similar to New York City’s law, New York State’s law also requires employers with four or more employees to include a compensation range in all advertisements for new jobs, promotions and transfer opportunities. It’s not clear at this time whether all four employees must be employed within New York State, or whether an employer is covered even if employees are located elsewhere. The New York Department of Labor (NYDOL) is authorized to promulgate regulations to clarify the law, and it is anticipated that guidance will be issued before the law’s effective date.
Employment agencies and recruiters–but not temporary employment agencies–are also covered by each law.