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Doing Business in New York: Key Employment Law Changes in 2016

March 15, 2016

2016 ushered in a flurry of changes to the employment laws of both New York State and New York City, as legislators in both jurisdictions passed a slew of new laws to better protect employees and, in most cases, place new restrictions and responsibilities on employers. Here is a brief summary of several important pieces of new legislation that New York employers must now comply with.

Enhancements to Workplace Protections for Women
The Women's Equality Act (WEA) — a package of new legislation designed to bolster protection of women's rights in the workplace — took effect in New York State on January 19, 2016. Key elements of the WEA include:

  • Under a new, more stringent standard, employers must justify a pay differential by pointing to "any bona fide factor other than sex, such as education, training or experience," including a seniority system, merit system or system that measures earnings by quantity or quality of production.
  • Employees can now compare their compensation to others within the same "geographic region" (up to the county level) rather than to others within a single physical location.
  • Employers are now prohibited from taking adverse action against employees who inquire about, discuss or disclose either their own wage information or that of their co-workers.
  • The liquidated damages imposed for willful violations of New York's equal pay law have been hiked to 300% of the unpaid wages owed.
  • "Familial status" is now a protected category. The New York State Human Rights Law has been amended to prohibit workplace discrimination based upon familial status — including the fact that an employee either does or does not have a child.
  • Accommodation is now required for pregnancy-related conditions. Employers with four or more employees are required to provide reasonable accommodations for employees' pregnancy-related conditions, which are to be treated as temporary disabilities. Examples of such accommodations are providing an accessible worksite, acquiring or modifying equipment, job restructuring, and modified work schedules, provided that such actions do not impose an undue hardship on the employer's business.
  • Attorneys' fees are now available. State courts and the New York State Division of Human Rights can now award attorney's fees to a prevailing party in a gender-based discrimination claim.
  • Sexual harassment claims may now be brought against all employers, regardless of their size. It is no longer the case that such a claim can only be brought against an employer with more than four employees.

New York State Protects Transgender Workers From Discrimination
Effective January 20, 2016, new regulations issued by the New York State Division of Human Rights treat gender dysphoria as a disability, and provide the same protections against discrimination on its basis as they do for discrimination against members of any other protected category. Reasonable accommodation is required, and an employer's refusal to provide it "where requested and necessary" is deemed discriminatory, as is harassment. Penalties for violation can be up to $50,000, or as much as $100,000 for "willful and wanton" discrimination.

Minimum Wage Increases in New York State and New York City
Three separate increases to New York's minimum wage took effect on December 31, 2015. They affect a broad group of non-exempt employees, fast food workers and employees for whom "tips" make up an expected portion of their hourly wage:

  • State-wide minimum wage rose to $9.00 per hour, an increase of $.25.
  • Minimum wage for fast food workers increased to $10.50 in New York City and $9.75 in New York State; these increases mark the beginning of the state's gradual move to a $15.00 minimum wage for such workers; the implementation will be completed in late 2018 in New York City, and in mid-2021 in the rest of the state.
  • Pre-tip minimum wage for New York's "tipped" workers — including restaurant servers, hotel employees and a variety of other hospitality industry employees — rose to $7.50, while the tip credit for such employees dropped to $1.50.

New York City Further Restricts Use of Credit Checks and Background Checks
Two new amendments to the New York City Human Rights Law put substantial new restrictions on the inquiries employers are permitted to make of both prospective new hires and current employees.

The "Stop Credit Discrimination in Employment Act" prohibits New York City employers from requesting or considering consumer credit histories in making employment decisions. Exemptions include positions for which: a credit check is required pursuant to federal or state statute or regulation; a non-clerical employee who has regular access to trade secrets; employees with responsibility for funds or other assets valued at $10,000 or more; and employees whose positions involve oversight of digital security systems.

The "Fair Chance Act" bars employers in New York City with four or more employees from conducting criminal background checks on prospective new employees until they have been made a "conditional offer of employment." An employer that wishes to withdraw that offer based on the background check results will be subject to a rigorous notice procedure: they must provide the prospective employee with a copy of the report, and time to respond to its findings, among other requirements.

To read the full text of the new law as well as a list of exempt employers, click here.

New York City Affordable Transit Act
As of January 1, 2016, New York City's new Affordable Transit Act requires covered New York City employers to offer their employees the opportunity to purchase qualifying transportation benefits — including public transit, parking, van pooling and bicycling — with pre-tax earnings. The act applies to employers with 20 or more full-time employees who work an average of 30 or more hours per week within the five boroughs. A once-covered employer that performs a headcount reduction bringing it below the 20-employee statutory minimum must still provide the pre-tax benefit to employees for the duration of their employment.

Exemptions include government entities, employers not required by law to pay federal, state and city payroll taxes and employers that are parties to a collective bargaining agreement. If an employer subject to a collective bargaining agreement also employs 20 or more non-union workers, those employees are eligible to receive benefits under the Act.

Employers have until July 1, 2016 to comply.

Implications
As New York's employment laws continue to evolve, it remains important for the New York employers — as well as out-of-state employers with New York-based employees — to stay abreast of ongoing changes.

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Drogin, Laurent S. Partner and Chair of Labor and Employment Practice and Co-Chair of Restrictive Covenant Practice Partner and Chair of Labor and Employment Practice and Co-Chair of Restrictive Covenant Practice 212.216.8016 VCard
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