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New York employers now have a big “to do” item for 2025. Starting January 1, 2025, New York employers will be required to provide employees with 20 hours of paid prenatal personal leave (PPPL) during any 52‑week calendar period in addition to paid sick and safe leave (PSSL). New York is the first state in the US to require employers to provide such leave.

The new obligation results from Governor Hochul’s FY 2025 executive budget bill (A 8805), which passed April 20, 2024 and (among other things) amends New York Labor Law § 196-b (New York state’s paid sick and safe leave law). The new law does not change an employee’s entitlement to other leaves such as PSSL (which is 40 or 56 hours per year, depending on the size of the employer) and New York Paid Family Leave (which provides eligible employees job-protected, paid time off for reasons including to bond with a newborn, adopted or fostered child).

Breaking down PPPL

Who does this apply to?

All employers in New York are required to provide PPPL to all pregnant employees.

What type of leave is covered by PPPL?

PPPL is leave taken for health care services received by an employee during their pregnancy or related to such pregnancy, including

  • Physical examinations
  • Medical procedures
  • Monitoring and testing, and
  • Discussions with a health care provider related to the pregnancy

Does PPPL have to accrue before employees can take PPPL?

No. Eligible employees can take all 20 hours of PPPL they are entitled to for the 52-week period starting the effective date of the new law–without waiting for PPPL to accrue.

Are there certain increments for taking leave?

Employees are permitted to take PPPL in hourly increments.

How is PPPL paid?

PPPL must be paid in hourly installments. Employers must pay employees for PPPL at the employee’s regular rate of pay, or the applicable minimum wage–whichever is greater.Continue Reading New York Employers’ New “To Do” Item for 2025: Provide Paid Prenatal Personal Leave Starting January 1

New York never rests–especially for employers–and 2023 was no exception. In 2023, New York employers were required to continuously pivot to meet new obligations and adhere to new limitations under freshly-enacted laws, and to closely follow landmark legislation that would significantly impact the workplace if signed. At the top of the list: S3100, a bill that would have banned employers’ use of employee noncompetes if signed (but employers can now breathe a sigh of relief, because Governor Hochul recently vetoed the bill). 2024 promises to continue to be dynamic for New York employers.

Here are ten of the most important changes New York employers need to know right now as we step into 2024–as well as what’s coming down the pike, a couple of important changes you may have missed, and what we’re keeping an eye on as we step into the new year.  

What you need to know right now

1. New York’s bill restricting noncompetes vetoed by Governor Hochul

On December 22, 2023 Governor Hochul vetoed S3100, which would have been the most restrictive state-level ban on employers’ use of noncompetes to date if it had been signed into law. Passed by the New York State Assembly in June 2023, S3100 provided that every contract restraining anyone from engaging in a lawful profession, trade or business of any kind is void to the extent of the restraint; allowed a private right of action for employees; and did not have an explicit “sale of business” exception (for more details on the now-vetoed legislation, see our prior blog here.)

The bill faced opposition by Wall Street and other industries that heavily rely on noncompetes, and business groups pushed for amendments to the bill (which the governor had until the end of 2023 to sign or veto). In late November, Governor Hochul reportedly stated she was in favor of striking a balance that would protect lower- and middle-income workers (up to $250,000) but allow noncompetes for those at higher income levels who are better equipped to negotiate on their own to do so. Reports are that Governor Hochul recently tried to negotiate amendments to the bill in this respect, but that negotiations broke down.

Employer takeaway:

  • We expect this issue to make an appearance in New York’s next legislative session. Employers should keep an eye out for the introduction of new bills to restrict noncompetes and follow their progress. Now that Governor Hochul has expressed favor for an income threshold to ban noncompetes, legislators may be more likely to craft a bill that will more easily be signed into law.

Continue Reading New York Employer “Top Ten” (and more): What to Know Heading into 2024

We’re not even out of 2023, and New York employers who engage independent contractors already have new obligations to reckon with before next spring. On November 22, 2023, New York Governor Kathy Hochul signed the New York State “Freelance Isn’t Free Act”, increasing obligations for parties who engage freelance workers (including independent contractors). Starting May 20, 2024, hiring parties (including employers who engage independent contractors) must provide freelance workers with written contracts, pay them within a specified time period, maintain records, and satisfy additional new obligations—and freelance workers will gain a private right of action for violations.

The Act replicates the 2017 NYC’s Freelance Isn’t Free Law, adding administrative oversight and support from the New York State Department of Labor and the New York State Attorney General while maintaining New York City’s local law. The Act will apply to contracts entered into on or after the May 20, 2024 effective date.

Here are some key details:

Definitions: “freelance workers” and “hiring parties” 

The Act defines a “freelance worker” as “any natural person or organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for an amount equal to or greater than eight hundred dollars”—but does not include certain sales representatives, practicing attorneys, licensed medical professionals, and construction contractors. Also, a “hiring party” is any person (other than government entities) who retains a freelance worker to provide any service.

Written contracts required

The Act requires a written contract if the freelance work is worth at least $800, inclusive of multiple projects over a 120-day period. The hiring party must furnish a copy of the contract, either physically or electronically. At a minimum, the written contract must include:

  1. The name and the mailing address of both the hiring party and the freelance worker;
  2. An itemization of all services to be provided by the freelance worker, the value of the services to be provided under the contract, and the rate and method of compensation;
  3. The date on which the hiring party must pay the contracted compensation (or the mechanism by which the date will be determined); and
  4. The date by which a freelance worker must submit to the hiring party a list of services rendered under the contract to meet the hiring party’s internal processing deadlines to allow compensation to be paid by the agreed-upon date.

The New York State Department of Labor will provide model contracts on its website for freelancers and hiring parties to use.Continue Reading More Scrutiny and Obligations for NY Businesses Engaging Independent Contractors Coming Spring 2024

New York in the summer: warm days, Shakespeare in the Park, visits to the beach, and the end of the New York State legislative session–which often means a few surprises for New York employers. This summer, not only do employers have to contend with New York’s amended WARN Act regulations and the enforcement of New York City’s Automated Employment Decision Tool law (both now effective), they also have to keep a close eye on four New York State bills that have cleared both houses of the state legislature and could be signed by Governor Hochul–including one that would arguably be the nation’s broadest ban on employee noncompete agreements. We highlight two changes–and four that could be coming down the pike–New York employers should pay close attention to this summer.

Two to know

1. Amendments to New York’s WARN Act regulations now in effect.

New York State’s proposed amendments to its Worker Adjustment and Retraining Notification (WARN) Act regulations were adopted on June 21 and are now in effect. The definition of a covered employer has been expanded, remote employees must now be included in the threshold count, certain notices must include more information or be provided electronically, and exceptions for providing notice have changed (among other modifications). In addition, there’s a new York State Department of Labor WARN portal for employers to use for “a more streamlined user experience.” Want the details on the WARN Act regulation changes and some helpful tips for employers? See our prior blog here.

2. Enforcement of New York City’s Automated Employment Decision Tool law began July 5.

New York City’s Local Law 144 prohibits employers and employment agencies from using an automated employment decision tool to substantially assist certain employment decisions unless the tool has been subject to a bias audit within one year of the use of the tool, information about the bias audit is publicly available, and certain notices have been provided to employees or job candidates. Violations of the provisions of the law are subject to a civil penalty. Enforcement of the law began July 5, and employers need to be diligent. For those who haven’t done so yet, the first (and immediate) step is to take inventory of HR tech tools. Legal should partner with HR and IT to determine whether the company uses automated employment decision tools to make any employment decisions in a manner that triggers the law. See our prior blog here for additional steps to take, as well as further details on the law, penalties, and some practical tips for employers.

Four to watch

1. New York could become the fifth state to ban employee noncompetes.

On June 21, the New York State Assembly passed S3100 (already passed by the New York State Senate), which will be the most restrictive state-level ban on employers’ use of noncompetes to date if signed into law by Governor Hochul.

Under the bill, every contract that restrains anyone from engaging in a lawful profession, trade or business of any kind is void to the extent of such restraint.

The ban: The bill does not permit employers (or their agents) to “seek, require, demand, or accept a non-compete agreement” from a “covered individual.”

  • A “non-compete agreement” is any agreement (or clause in an agreement) between an employer and a “covered individual” that prohibits or restricts the individual from obtaining employment after the conclusion of employment with the employer. 
  • A “covered individual” is “any other person” who performs work or services for another person on such terms and conditions that puts them in a position of economic dependence on and under an obligation to perform duties for that other person–regardless of whether they are employed under a contract of employment.

Continue Reading New York Employer Summer Roundup: Two to Know and Four to Watch

Just after the fireworks’ finale, New York City’s Department of Consumer and Worker Protection will begin enforcing its new ordinance regulating the use of automation and artificial intelligence in employment decisions. The DCWP recently issued a Notice of Adoption of Final Rule establishing that enforcement efforts will begin July 5, 2023.

Here are three reasons this matters

  1. The new law requires time-sensitive, significant actions (read: audits, notices and public reporting) from employers using automated employment decisions tools to avoid civil penalties;
  2. Company compliance will require a cross-functional response immediately, so it’s time to get your ducks in a row; and
  3. Since the City’s law is (mostly) first-of-its-kind, it is likely a harbinger of things to come for employers across the country and it could be used as a framework in other cities and states.

The law in a nutshell

Local Law 144 prohibits employers and employment agencies from using an automated employment decision tool unless the tool has been subject to a bias audit within one year of the use of the tool, information about the bias audit is publicly available, and certain notices have been provided to employees or job candidates. Violations of the provisions of the law are subject to a civil penalty.Continue Reading Enforcement of New York City’s Artificial Intelligence Rule Begins July 5, 2023: Here’s What Employers Need to Know

The Equal Opportunity Employment Commission (EEOC) has released new guidance for employers on the use of artificial intelligence (AI) in employment, this time with a focus on adverse impact under Title VII. On May 18, 2023, the EEOC released “Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection…

An updated New York State Sexual Harassment Prevention Model Policy (the “Model Policy”) is out. On April 11, 2023, Governor Kathy Hochul announced that the New York State Department of Labor (“NYSDOL”) finalized updates to the Model Policy, a template document New York State provides to help employers comply with state law. The updated guidance (the result of a collaboration between the NYSDOL and the New York State Division of Human Rights), addresses, among other topics, remote workers, gender discrimination, and retaliation–and provides a new interactive training video, a slide deck and other resources to help employers (and employees) comply with the State’s mandatory training requirements.

Though New York State employers aren’t required to use to the Model Policy (see more below), they may want to review their sexual harassment prevention policies and training in light of the updates and work with counsel to ensure their policies and training are still in compliance.Continue Reading New York State Updates Its Model Sexual Harassment Prevention Policy: Is Yours Still in Compliance?

Special thanks to co-presenter, Jennifer Bernardo.

With a surge in layoffs taking place over the past year, many of those originally hired to diversify the workplace have been impacted, and studies show that inclusion, diversity and equity (ID&E) professionals have been affected by layoffs at a higher rate than others. The harm? Other than…

New Jersey may have started a trend. As of April 10, covered New Jersey employers must now comply with new requirements under the New Jersey mini-WARN Act (see our blog here). New York and California are giving chase, with proposed amendments to New York State’s WARN Act regulations, New York State’s WARN Act, and California’s WARN Act. And New York employers should take note: New York’s WARN Portal is set to go live this month.

Proposed Amendments to NYS WARN Regulations–And a New NYS WARN Portal

The New York State Department of Labor has proposed amendments to the New York State WARN Act (“NYS WARN”) regulations that are intended to account for the post-pandemic workforce, including clarifying how remote work impacts NYS WARN compliance and simplifying language to ensure employers understand their obligations under the law. The Department of Labor is accepting comments to the proposed regulations until May 30, 2023. 

Key items in the proposed amendments to the NYS WARN regulations include:

  • Remote employees included in threshold count: The employers covered by NYS WARN has been expanded to include any employer who employs 50 or more full-time employees, who work at the single site of employment plus individuals that work remotely but are based at the employment site, which may include remote employees in New York as well as other states.
  • Certain notices must be provided electronically: Notices being sent to the New York State Department of Labor Commissioner (“Commissioner”) must be provided electronically and are no longer required to have original signatures.
  • Notice must include additional information: The notice to the Commissioner must include more detailed information about the affected employees, including telephone numbers, job titles, and whether they are paid on an hourly, salary or commission basis. The notice to affected employees must include any other information relevant to their separation, such as information related to any financial incentives an employee may receive if they remain employed by the employer until the effective date of the employment loss, as well as available dislocated worker information.
  • The exceptions for notice are changing:
    • Faltering company exception reduced: The faltering company exception will apply only to plant closings, and will no longer apply to mass layoffs, relocations or reductions in hours.
    • Unforeseeable business circumstances exception expanded: The unforeseeable business circumstances exception will be expanded to expressly include in certain circumstances a public health emergency (including a pandemic) or a terrorist attack.
    • Exception to notice requires determination by Commissioner: The 90-day notice period can be reduced in limited circumstances (including under the faltering company, unforeseeable business circumstances, and natural disaster exceptions) only if:
      • The employer submits a request for consideration for eligibility of an exception to the Commissioner within 10 business days of providing the required notice under NYS WARN to the Commissioner (unless the Commissioner grants an extension);
      • The employer provides a reason for reducing the notice period in addition to any other documents the Commissioner may require; and
      • The Commissioner determines that the employer has established all of the elements of the claimed exception.
  • The calculation of back pay is being clarified for hourly employees: The calculation to be used to determine the average rate of compensation and final rate of compensation for hourly employees is clarified. Such calculation uses the number of hours worked instead of the number of days worked. The days worked method of calculation should still be used for non-hourly employees.
  • The use of payment in lieu of notice is being clarified: Liability for an employer’s failure to give the required notice to employees under NYS WARN will be reduced by amounts paid to an employee in lieu of notice, except where the following conditions are met (then such payments will be considered wages for the notice period):
    • There is an employment agreement or uniformly applied company policy that requires the employer to give the employee a certain amount of notice before a layoff or separation;
    • The employee is laid off without the required notice; and
    • The employer pays the employee an amount equal to the employee’s wages and any benefits for the required notice period.

Continue Reading Employer WARN-ING: Potential Changes to New York’s and California’s WARN Acts Barreling Down the Turnpike

As discussed in our blog here, in February the National Labor Relations Board issued the McLaren Macomb decision prohibiting employers from “tendering” to employees separation or severance agreements that require employees to broadly waive their rights under the National Labor Relations Act.

Then, on March 22, the NLRB General Counsel Jennifer Abruzzo issued guidance addressing…