New York’s employment landscape is undergoing sweeping changes. Recent legislation introduces new compliance challenges across nearly every facet of workplace regulation—from pay transparency to leave entitlements, wage and hour rules, employment agreements, and more.
Employers will need to revise policies, contracts, and day-to-day practices to stay compliant and avoid costly missteps. The time to act
This article was originally published by IAPP linked here.
When monitoring employees in the workplace in the U.S. and Canada, employers must be cognizant of their obligations under employment and data privacy laws.
In the US, employers can mostly negate privacy expectations from developing in the workplace by providing clear notice of monitoring practices and which notice is required in certain states, such as New York. But under the California Consumer Privacy Act, data minimization requirements apply and monitoring practices must be justifiable as necessary and proportionate.
In Canada, employers are required to balance operational needs such as safety, security and productivity, with the privacy rights of their employees. Monitoring should be reasonable, proportionate and tied to a legitimate business purpose. Organizations must comply with applicable federal or provincial privacy legislation, which can include safeguarding any employee personal information collected, obtaining employee consent in certain circumstances, and providing notice to employees of monitoring practices.
For federally regulated private-sector employers — such as banks, airlines and telecommunications companies — employee monitoring is generally governed by the Personal Information Protection and Electronic Documents Act. Provinces that have enacted privacy laws deemed “substantially similar” to PIPEDA are exempt from its collection, use and disclosure provisions under section 26(2)(b). Presently, only Alberta, British Columbia and Québec have privacy legislation that is substantially similar to PIPEDA.
At the federal level in the U.S., employee monitoring is primarily governed by the Electronic Communications Privacy Act and the Stored Communications Act, which permit monitoring for legitimate business purposes but impose strict limits on unauthorized interception and access to private communications. Further, employers must conduct all workplace monitoring and surveillance in compliance with federal, state and local anti-discrimination laws. And, all employers, even those with a nonunionized workforce, must comply with the National Labor Relations Act when conducting workplace monitoring and surveillance. Continue Reading Employee Monitoring in the US and Canada: What Employers Need to Know
On July 23, the White House unveiled its much-anticipated AI Action Plan. The Action Plan follows President Trump’s Executive Order 14179 of January 23 on “Removing Barriers to American Leadership in Artificial Intelligence”—which directed the development of the Action Plan within 180 days—and subsequent consultation with stakeholders to “define the priority policy actions needed to sustain and enhance America’s AI dominance, and to ensure that unnecessarily burdensome requirements do not hamper private sector AI innovation.” This update provides a summary of the Action Plan and key considerations for businesses developing or deploying AI.
The Action Plan is structured around three pillars: (I) Accelerating AI Innovation, (II) Building American AI Infrastructure, and (III) Leading in International AI Diplomacy and Security. Although, the AI Action Plan is not legally binding in itself, each pillar contains a number of policy recommendations and actions, which will subsequently need to be actioned by various government agencies and institutes.
Pillar I focuses on reducing the impact of regulation that may hamper AI development. To this end, the Action Plan instructs the Office of Management and Budget to “consider a state’s AI regulatory climate when making funding decisions and limit funding if the state’s AI regulatory regimes may hinder the effectiveness of that funding or award.” Pillar I emphasizes the need for workplace action that supports transition to an AI economy, citing AI literary and skill development among key workforce priorities. The Action Plan also calls for federal- and state-led efforts to evaluate the impact of AI on the labor market. In order to promote advancements in American AI technologies, Pillar I specifically calls for investment in open-source AI models, support for the preparation of high-quality datasets for use in model training, and acceleration of the federal government’s adoption of AI.
Pillar II of the Action Plan includes actions aimed at strengthening the country’s AI infrastructure. The Action Plan seeks to streamline the expansion of America’s semiconductor manufacturing capabilities by removing extraneous policy requirements for CHIPS-funded semiconductor manufacturing operations. Pillar II also focuses on the fortification of AI systems and other critical infrastructure assets against cybersecurity threats. In order to achieve these goals, the Action Plan proposes various measures to enhance cybersecurity protections such as sharing AI-security threat intelligence across critical infrastructure sectors and developing standards to facilitate the development of resilient and secure AI systems.Continue Reading US AI Vision in Action: What Businesses Need to Know About the White House AI Action Plan
As AI adoption accelerates across workplaces, labor organizations around the world are beginning to take notice—and action. The current regulatory focus in the US centers on state-specific laws like those in California, Illinois, Colorado and New York City, but the labor implications of AI are quickly becoming a front-line issue for unions, potentially signaling a new wave of collective bargaining considerations. Similarly, in Europe the deployment of certain AI tools within the organization may trigger information, consultation, and—in some European countries—negotiation obligations. AI tools may only be introduced once the process is completed.
This marks an important inflection point for employers: engaging with employee representatives on AI strategy early can help anticipate employee concerns and reduce friction as new technologies are adopted. Here, we explore how AI is emerging as a key topic in labor relations in the US and Europe and offer practical guidance for employers navigating the evolving intersection of AI, employment law, and collective engagement.
There is no specific US federal law regulating AI in the workplace. An emerging patchwork of state and local legislation (e.g. in Colorado, Illinois and New York City) address the potential for bias and discrimination in AI-based tools—but do not focus on preventing displacement of employees. In March, New York became the first state to require businesses to disclose AI-related mass layoffs, indicating a growing expectation that employers are transparent about AI’s impact on workers.[1]
Some unions have begun negotiating their own safeguards to address growing concerns about the impact that AI may have on union jobs. For example, in 2023, the Las Vegas Culinary Workers negotiated a collective bargaining agreement with major casinos requiring that the union be provided advance notice, and the opportunity to bargain over, AI implementation. The CBA also provides workers displaced by AI with severance pay, continued benefits, and recall rights.
Similarly, in 2023 both the Writers Guild of America (WGA) and Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) negotiated agreements with the Alliance of Motion Picture and Television Producers (AMPTP) that include safeguards against AI reducing or replacing writers and actors. WGA’s contract requires studios to meet semi-annually with the union to discuss current and future uses of generative AI—giving writers a formal channel to influence how AI is deployed in their industry. The SAG-AFTRA contract requires consent and compensation for use of digital replicas powered by AI.Continue Reading Navigating Labor’s Response to AI: Proactive Strategies for Multinational Employers Across the Atlantic
With nearly two-thirds of U.S. companies mandating formal return-to-work policies, employers may face challenges in enforcing RTO practices. Multinational employers should be aware of five key considerations and practical solutions to avoid potential roadblocks.
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Original article published in Law360.
Even employee claims of sexual harassment that occurred before the effective date of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) may end up in court. In Olivieri v. Stifel, Nicolaus & Co., the Second Circuit Court of Appeals held that acts occurring before the effective date of the EFAA can be deemed to be part and parcel with acts occurring after the effective date–so that all of the claims accrue as of the later date and are subject to the EFAA.
Patricia Olivieri filed suit against her employer Stifel, Nicolaus & Co. (Stifel) and several coworkers in 2021 alleging gender-based discrimination, hostile work environment and retaliation claims under Title VII and the New York State Human Rights Law (NYSHL). Olivieri alleged her manager sexually assaulted and repeatedly sexually harassed her, and that after she reported her manager to the company, the defendants allegedly subjected her to a hostile work environment characterized by discrimination and retaliation.
Stifel moved to compel arbitration of Olivieri’s claims based on an arbitration clause in the plaintiff’s employment agreement. The US District Court for the Eastern District of New York initially granted Stifel’s motion to compel in late March 2022, not having been made aware of the enactment of the EFAA on March 3, 2022 by any party. (The EFAA allows a plaintiff alleging sexual harassment or sexual assault to void a pre-dispute arbitration agreement at their discretion. Claims under the EFAA accrue “on or after” March 3, 2022.) In light of the EFAA, Olivieri subsequently moved for reconsideration of the district court’s order requiring her to arbitrate her claims, and the district court turned course, vacating its prior decision and denying the employer’s motion to compel arbitration. The district court concluded that the plaintiff’s hostile work environment claims–which alleged a hostile work environment and retaliation both before and after the effective date of the EFAA–were subject to the continuing violation doctrine of accrual and accrued after the EFAA’s effective date. Therefore, the EFAA applied to allow the plaintiff to void her pre-dispute arbitration agreement. On appeal, a three-judge panel of the Second Circuit unanimously affirmed.Continue Reading Before, After, or Both? Second Circuit Rules Pre-EFAA Activity Can Go to Court Instead of Arbitration
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).
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
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
In late breaking news out of New York, Governor Kathy Hochul has vetoed legislation that would have imposed the most restrictive state-level ban on employee non-competes in the United States. Last June, the New York State Assembly passed S3100, which if signed by Governor Hochul, would have voided any contract restraining anyone from engaging in a
