Evolution of Labor and Employment Law in New York – 2021 Year in Review – Employment and HR

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New York, NY (February 23, 2022) – In 2021, the New York State Legislature and the New York City Council were typically active in passing new laws and amending existing laws regarding labor and employment. Employers in these jurisdictions must continue to be flexible in adapting to changes in the law that impact their operations in many ways. We summarize the main developments below.

NEW YORK STATE

Marijuana

New York has officially legalized recreational marijuana use for adults ages 21 and older, creating a new protected class. Adults are now allowed to consume, possess, purchase, display, obtain and transport marijuana in limited quantities. In addition, the law also creates a new category of people entitled to reasonable accommodation in the workplace. Because medical practitioners are now able to recommend medical marijuana for the treatment of any condition, the possible realm of “certified medical marijuana users” has expanded to include more than just people suffering from a “condition. serious medical condition”. Employers are prohibited from discriminating against employees because of their use of marijuana outside of working hours. Employers can, however, prohibit the use of marijuana during work hours, on company property, and while an employee is using company equipment or property. Employers can take adverse action against employees for on-duty marijuana use where appropriate, such as when an employee is impaired by marijuana on the job.

Paid vacation

The Empire State has also expanded its Paid Family Leave Act and Paid Sick Leave Act. The first has been amended to provide that employees who take leave to care for family members can now do so to care for siblings. Employees eligible for paid family leave can take up to 12 weeks of leave to care for siblings, which includes biological, adopted, step and step siblings, while earning 67% of their salary. Leave can also be taken to care for family members who live out of state or country and have serious medical conditions.

The Paid Sick Leave Act has been revised specifically to address pandemic-related issues. Employers must now grant four hours of paid leave to all employees in the private and public sectors after each injection of COVID-19, in addition to four hours for the injection of each employee’s child. The Paid Sick Leave Act also covers paid time off for employees to care for their children who experience temporary side effects from the COVID-19 vaccination.

Wage theft

New York State labor law has been amended to make it easier for employees to claim unpaid and owed wages. The “No Wage Theft Loophole Act” closes a loophole regarding the application of the labor law prohibition against unfair deductions when an employer withholds all of an employee’s wages. Employees can now bring private lawsuits against their employers under labor law when part of their wages or their entire wages are withheld.

heroes law

New York enacted the Novel HERO Act. Rushed by the COVID-19 pandemic, the law aims to ensure employers have a plan in place in the event of an airborne infectious disease. Employers are required to either adopt applicable standards established by the state Department of Labor or establish another equivalent airborne infectious disease exposure plan. Employers are required to post their plan in the workplace and provide it to all employees, either in writing or in the employee handbook. Employers with 10 or more employees must also authorize the formation of a joint work safety committee (if one does not already exist), made up of at least two thirds of non-management employees. Committees are authorized to raise issues regarding occupational safety and health associated with the policies put in place by the HERO Act.

Salary thresholds

Finally, New York State increased certain county salary thresholds to classify executive and administrative employees as exempt. Now, the thresholds for people working in Nassau, Suffolk, and Westchester counties reflect New York City at an annual salary of $58,500, and the classification threshold for the rest of the state is $51,480.

NEW YORK CITY

ban box

New York City has expanded the scope of its Fair Chance Act (FCA), or “ban-the-box” law, to increase protections for applicants and employees with criminal histories, including convictions, charges and arrests. The FCA originally only protected applicants for employment, but it now expands to provide protections for current employees as well as interns, freelancers and independent contractors. The law has also been expanded with respect to what is considered a “criminal history”, which now includes pending arrests and other criminal charges. Employers are therefore prohibited from investigating or taking adverse action against any candidate or employee for these bases as well as for violations, non-criminal offenses, non-pending arrests or deferments. for dismissal, judgments for young offenders or sealed offences. , if disclosure of such matters would violate New York City human rights law.

This order prohibits employers from inquiring about or reviewing information about an individual’s conviction history or pending cases until a conditional job offer has been made. Once the employer has made a conditional job offer, that offer can only be withdrawn in limited circumstances after following a rigorous process. New FCA regulations have been passed which set out seven factors employers must consider when considering taking adverse action against an applicant or employee based on arrest and conviction history. These factors are:

  1. New York City’s policy to overcome unnecessary stigma and exclusion of those involved in criminal justice in the areas of licensing and employment;

  2. The specific duties and responsibilities necessarily related to the job held by the person;

  3. The effect, if any, of the criminal offense for which the candidate or employee has been convicted, or which is alleged in the case of pending arrests or criminal charges, on the fitness or ability of the candidate or employee to exercise one or more of these functions or responsibilities;

  4. If the person was 25 years of age or younger at the time the relevant criminal offense occurred;

  5. The seriousness of the offence;

  6. The legitimate interest of the public body or private employer to protect property and the safety and well-being of specific individuals or the general public; and

  7. Any additional information produced by the applicant or employee, or produced on their behalf, relating to their rehabilitation or good conduct, including a history of positive performance and conduct at work or in the community, or other evidence of good conduct .

After considering these factors, an employer may rescind a conditional job offer only after determining that there is either (a) a direct connection between the alleged wrongdoing that is the subject of the arrest or pending criminal charge and employment sought or held, or (b) the granting or retention of employment would involve an unreasonable risk to property or to the safety or well-being of individuals or the general public. In addition, before the employer can withdraw a conditional offer of employment based on a candidate’s or current employee’s criminal history, the employer must provide a written opinion and analysis applying the factors set forth below. above and stating the basis for its decision. Employers must also allow the claimant or employee a reasonable time to respond before making an adverse decision.

Vaccines

In the area of ​​COVID-19, a vaccination mandate has been enacted for all private employers in New York. Private sector employers are required to obtain and keep confidential the vaccination information of their employees. Employees who do not provide proof of vaccination are prohibited from entering the workplace (defined as any place where people work in the presence of other people). Employers can continue to employ unvaccinated people if they can work from home. If an employee can provide only one proof of vaccine injection, and if more than one is required, the employee must provide proof of the second dose of vaccine within 45 days of the first. This mandate applies unless the employee has a medical or religious dispensation.

Paid vacation

New York City has also expanded its paid time off law to provide additional paid time off for employees and legal guardians with minor children (and adult children with mental or physical disabilities) to get vaccinated against COVID-19. 19.

Municipal contractors

Under a 2021 New York City executive order, organizations that contract with city agencies to provide human services are subject to additional sexual harassment reporting requirements. Social service providers under the law include child care, foster care, home care, homeless assistance, housing and accommodation assistance, prevention services, youth services and senior centers, health or medical services, including those provided by health maintenance organizations, legal services, employment support services, vocational training programs and Hobbies. If the New York City Department of Investigation pursues an investigation, Covered Entities are required to make available their sexual harassment policies and procedures for complaints, complaints or allegations of any employee, customer or other individual sexual harassment or retaliation by the CEO or equivalent director (including the final disposition or adjudication of such complaint), and other requested information.

Biometric information

Finally, in the area of ​​employment and data privacy, New York City businesses are now subject to restrictions on selling, renting, or profiting from biometric information about customers and employees. Companies must post notices to customers and employees if they collect such information, which consists of characteristics such as retina scans and fingerprints. The law provides for a 30-day notice and remedy period for violations of the signage requirement. However, a person can file a private lawsuit without giving such notice if the entity has sold or shared the biometric information.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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