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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?

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…

The Illinois Supreme Court just handed union employers with broad management rights clauses in their collective bargaining agreements (CBA) a win. On March 23, 2023 the Illinois Supreme Court affirmatively answered a certified question (Does Section 301 of the Labor Management Relations Act preempt BIPA claims asserted by bargaining unit employees covered by a collective…

California employers may soon need to rethink and revise their time-rounding policies–even if they’re neutral. In Camp v. Home Depot, USA, the California Supreme Court is set to weigh in on whether, under California law, employers may use neutral time-rounding practices to calculate employees’ work time for purposes of paying wages. A decision limiting or prohibiting the practice could require major changes to common timekeeping practices for payroll purposes, so employers–especially those engaging in time rounding–will want to keep a close eye on developments.

Here’s what’s happened so far, and what employers should do now.

Continue Reading Is Time Rounding Over for California Employers? The California Supreme Court Will Weigh In

Employers will now have to contend with a five-year statute of limitations for all employee claims under the Illinois Biometric Information Privacy Act (BIPA). On February 2, 2023, in Tims v. Black Horse Carriers, the Illinois Supreme Court held that a five-year statute of limitations applies to all BIPA claims—even those that are tied to the publication of an individual’s data and could presumably be subject to a one-year limitations period “for publication of matter violating the right of privacy.” The Court held that the legislative intent and purpose of BIPA, and the fact that BIPA does not have its own statute of limitations, favor all BIPA claims being subject to the state’s “catchall” five-year limitations period.

What happened

Plaintiff Tims filed a class-action complaint against his former employer, Black Horse, alleging that Black Horse violated section 15(a) of BIPA (providing for the retention and deletion of biometric information), and sections 15(b) and 15(d) of BIPA (providing for the consensual collection and disclosure of biometric identifiers and biometric information). Specifically, Tims alleged that Black Horse required its employees to use a fingerprint authentication time clock, and that Black Horse violated BIPA because it (1) failed to institute, maintain, and adhere to a publicly available biometric information retention and destruction policy required under section 15(a); (2) failed to provide notice and to obtain employees’ consent when collecting their biometrics, in violation of section 15(b); and (3) disclosed or otherwise disseminated employees’ biometric information to third parties without consent in violation of section 15(d).

Black Horse moved to dismiss the complaint as untimely, arguing that it was barred by the one-year statute of limitations in section 13-201 of the Illinois Code of Civil Procedure (Code). Black Horse argued that claims brought under BIPA concern violations of privacy, therefore the one-year limitations period in section 13-201 governing actions for the “publication of matter violating the right of privacy” should apply to such BIPA claims.

The circuit court rejected Black Horse’s argument, and denied the motion to dismiss. In doing so, the court held that violations of all three sections of BIPA were subject to Illinois’ “catchall” five-year limitations period in section 13-205 of the Code.

The appellate court, however, distinguished the applicable statute of limitations under BIPA based on the type of violation alleged. It held that violations of section 15(c) (prohibiting the sale, lease, trade or other profit from biometric information) and 15(d) (prohibiting the disclosure, redisclosure or dissemination of biometric information) were subject to the one-year limitations period in section 13-201 of the Code, while violations of section 15(a) (requiring a written policy with a retention schedule and guidelines for destroying biometric information), 15(b) (requiring notice and the specific purpose and length of collection of biometric information prior to collection), and 15(e) (requiring confidentiality and protective measures in the storage and transmission of biometric information) were subject to the five-year “catchall” limitations period in section 13-205.

Continue Reading One Limitations Period for All: Illinois Supreme Court Holds All Claims Under BIPA Have a Five-Year Statute of Limitations

This year has started with a bang for Illinois employers. Days into 2023, the legislature passed the Paid Leave for All Workers Act (the “Act”), which would require Illinois employers to provide most employees with a minimum of 40 hours of paid leave per year to be used for any reason at all–not just for sick leave. Governor Pritzker has announced he looks forward to signing the legislation. If he does, Illinois will join Maine and Nevada and become the third state to require paid leave for employers for “any” reason. If signed, the bill will take effect January 1, 2024, and will apply to all employers with at least one employee working in Illinois.

Here’s what Illinois employers need to know now.

Who is covered–and who is not

Under the Act, an employee who works in Illinois is entitled to earn and use up to a minimum of 40 hours of paid leave (or a pro rata number of hours) during a 12- month period.

The Act looks to the Illinois Wage Payment and Collection Act to define “employer” and “employee” (with some additions and carve-outs), but essentially applies to all employers with at least one employee in Illinois and employees in Illinois with some notable exceptions:

  • Independent contractors under Illinois law
  • Individuals who meet the definition of “employee” under the federal Railroad Unemployment Insurance Act or the Railway Labor Act
  • College or university students who work part time and on a temporary basis for the college at which they are enrolled
  • Individuals who work for an institution of higher learning for less than two consecutive calendar quarters and who do not have an expectation that they will be rehired by the same institution
  • Employees working in the construction industry covered by bona fide collective bargaining agreements (CBAs)
  • Employees covered by CBAs with an employer that provides services nationally and internationally of delivery, pickup and transportation of parcels, documents, and freight.

Also, the Act does not apply to any employer that is covered by a municipal or county ordinance in effect on the effective date of the Act that requires employers to give any form of paid leave to their employees, including paid sick leave or other paid leave. Thus, for instance, employers covered by the Chicago Paid Sick Leave Ordinance or Cook County Earned Sick Leave Ordinance won’t be required to provide paid leave under the Act.

When and how paid leave accrues under the Act

Paid leave accrues for employees at the rate of one hour of paid leave for every 40 hours worked, up to a minimum of 40 hours of paid leave per 12-month period (or a greater amount if the employer chooses to provide more than 40 hours of leave).

An employee would begin to earn paid leave on their first day of their employment (or the first day of the 12-month period, see below)–or on the effective date of the Act, whichever is later.

Employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA) will be deemed to work 40 hours in each workweek for purposes of paid leave accrual unless their regular workweek is less than 40 hours, in which case paid leave accrues on a pro-rata basis based on the employee’s regular workweek.

The “12-month period”

The 12-month period can be any consecutive 12-month period designated by the employer in writing at the time of the employee’s hire.

The employer can change the 12-month period if the employer gives notice to employees in writing prior to the change, and the change does not reduce the eligible accrual rate and paid leave available to the employee. If the employer changes the designated 12-month period, the employer must provide employees with documentation of the balance of their hours worked, paid leave accrued and taken, and their remaining paid leave balance.

Employees can start using paid leave after 90 days of employment (or the Act’s effective date)

Employees can begin using paid leave 90 days after the commencement of their employment or 90 days following the effective date of the Act, whichever is later-but employers can allow employees to use paid leave earlier.

Employees determine how much paid leave they need to use, but employers can set a reasonable minimum increment for the use of paid leave not to exceed 2 hours per day. If an employee’s scheduled workday is less than 2 hours a day, the employee’s scheduled workday will be used to determine the amount of paid leave.

Continue Reading Illinois on Verge of Requiring Employers to Provide 40 Hours of Paid Leave for “Any Purpose”

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.

Proposed Rules

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.

Employer Takeaways

  • 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.

Covered employers

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.

Continue Reading Top 10 New York Employment Law Updates: Closing Out 2022 and Heading Into 2023

The New York City Department of Consumer and Worker Protection (DCWP) has granted New York City employers a happy holiday, indeed. The Department just announced it will delay the enforcement of its automated employment decision tools law (Local Law 144 of 2021) until April 15, 2023, and is planning a second public hearing…

The new year always brings new challenges for employers, but California employers in particular face a world of change in 2023.

In our 75-minute “quick hits” format, we help you track what California employers need to keep top-of-mind for 2023 and provide practical takeaways to help you navigate the new landscape.

This webinar helps to…