Employment Law Update - Out with 2022, In with 2023

2022 brought interesting changes to the New York State and City employment law landscape. As we begin the new year, we would like to remind you of some significant changes in the law that occurred during 2022, as well as provide an overview of legal developments for 2023.
2022 New Law Recap
New York State - Electronic Monitoring Notice Required
As of May 7, 2022, employers with a place of business in New York must provide written notice to new employees upon hire, in either hard copy or electronic form, if they monitor or intercept telephone conversations or texts, emails, internet access or usage by an employee on any electronic device (e.g., cellphones and computers). New hires must acknowledge receipt of the employer’s electronic monitoring policy, and employers should maintain copies of those employee acknowledgments. Additionally, employers must post a notice of electronic monitoring in a conspicuous place that is readily available for viewing by employees subject to monitoring. As New York has not published its own poster, we recommend that employers post their own notice.
Although employers are not required to obtain acknowledgment forms of their electronic monitoring policy from existing employees, we recommend including the employer’s electronic monitoring policy in employee handbooks if they are revising them or issuing them for the first time, and if not, issuing an addendum to already existing handbooks covering this new policy and any other applicable ones. Failure to comply with the notice and posting requirements can result in increasing fines up to $3,000 for multiple offenses.
New York City - Salary Transparency Law
New York City’s Salary Transparency Law went into effect on November 1, 2022. Employers with four or more employees, with at least one employee working in New York City, must disclose the salary or a good faith estimate of the salary range in any advertisement for a job, promotion, or transfer opportunity that can be performed in New York City. Covered listings include postings on internal bulletin boards, internet advertisements, printed flyers distributed at job fairs, and newspaper advertisements. The “salary” disclosed only means base or hourly pay and does not include other forms of compensation or benefits like health insurance or paid time off. The law does not prohibit employers from hiring without using an advertisement nor does it require employers to create an advertisement to hire for a position. Failure to comply with the law can result in civil penalties after the first violation.
Westchester County - Salary Transparency Law
Westchester County’s pay transparency law took effect on November 6, 2022. The Westchester law is similar to New York City’s law in that it applies to employers with four or more employees. The law requires covered Westchester employers that advertise a job, promotion, or transfer opportunity that might be performed in Westchester County to post good faith minimum and maximum salary ranges. The law as written applies to postings for jobs where employees may perform their work remotely in Westchester County from their home, but does not include generic “help wanted” signs physically affixed to a business. The Westchester law states that it will be invalidated when the New York State law (discussed below) takes effect.
New York State - Electronic Posters
Effective December 16, 2022, New York employers are required to make available all state and federal notices that are required to be physically posted at the worksite available electronically, as well. This can either be through the employer’s website or by email. Employers must then notify their employees that these notices are available electronically (besides being posted at the worksite).
2023 Upcoming New Law Overview
New York State - Salary Transparency Law
Similar to New York City and Westchester County, New York State enacted a Salary Transparency Law that is currently scheduled to be enforced starting in September 2023. The state law requires that employers with four or more employees include the compensation or range of compensation and a job description, if available, in any advertisement for a job, promotion, or transfer opportunity. The “range of compensation” is defined as “the minimum and maximum annual salary or hourly range of compensation for a job, promotion, or transfer opportunity that the employer in good faith believes to be accurate at the time of the posting.” The law applies to jobs that can or will be performed within the state of New York, at least in part.
The law prohibits retaliation against employees or applicants who exercise their rights to obtain this information. The law also requires employers to keep and maintain records to comply with the law, such as the history of compensation ranges and job descriptions. Although there is no private right of action, employers who fail to comply with the statute can be subject to civil penalties. The state law explicitly provides that it will not preempt local laws, so New York City employers must also comply with New York City's pay transparency law. It is important to note that the state law specifically requires a job description to be posted, if one exists, and requires employers to maintain records. This is not explicitly required by the New York City law.
We anticipate that the Commissioner of Labor will be promulgating additional rules, as noted in the law, and will keep you informed of any additional requirements.
New York State - Paid Family Leave to Care for Siblings
Effective January 1, 2023, the definition of “family member” under the state's Paid Family Leave law is expanded to include “siblings,” defined as biological or adopted siblings, half siblings and stepsiblings.
New York State - Absence Retaliation Law
Effective February 19, 2023, New York prohibits discrimination or retaliation against employees for taking legally protected time off under federal, state or local law, such as under the Family and Medical Leave Act, the New York Paid Family Leave law, the state and New York City Safe and Sick leave laws, or leaves of absences such as an accommodation for an employee’s disability, religious beliefs or pregnancy. While the laws governing protected time off contain retaliation prohibitions, this amendment to the New York Labor Law clarifies that it is also retaliatory to assess “any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.”
New York State - Lactation Accommodation Amendment
New York recently passed an amendment to the Labor Law that expands upon an employer’s obligations to provide breaks to nursing employees, effective June 7, 2023. Similar to the New York City lactation accommodation law, employers in New York will be required to provide nursing employees with a designated lactation area to express breast milk that satisfies certain criteria set forth in the amendment. Pursuant to the amendment, employers will need to provide a policy to be created by the state to new hires and existing employees on an annual basis, as well as to employees returning to work after the birth of a child. We will provide a more detailed update on this subject when the state issues the model policy and more guidance on the amendment.
New York City - Artificial Intelligence in Hiring
On April 15, 2023, the New York City Department of Consumer and Worker Protection will begin enforcing Local Law 144, which places limits on an employer’s use of artificial intelligence for employee recruitment. The law regulates the employer’s use of automated employment decision tools (“AEDTs”), which include any “computational process, derived from machine learning, statistical modeling, data analytics or artificial intelligence” that assists with or replaces discretionary decision making in the hiring process. Under the new law, employers can only use these AEDTs to screen candidates and employees residing in New York City if certain criteria are met. The law provides that the employer must: ensure that the tool has been the subject of a bias audit in the last year, make the results of that audit publicly available, provide notice of the use of any AEDTs to candidates and employees residing in New York City, and provide employees or candidates who reside in New York City an accommodation or alternative selection process. The Department has postponed the implementation of this law from January 1, 2023 to allow for additional public hearing on the regulations. In the interim, employers can: review this new law with counsel; assess what categories of AI and technologies they use and determine whether the law impacts the availability of those tools; review data retention policies; work with third-party vendors to ensure their compliance with this law and update service agreements; train those involved in hiring and employment decisions to ensure they are familiar with this pending law; and, if a determination is made that you are or may be utilizing AEDTs, start to think about the notices and compliance with the independent bias audit requirements.
We will keep you posted on further developments regarding the above laws as well as any other future legal developments. Please contact a Clifton Budd & DeMaria, LLP attorney should you have any questions about any of these legal updates. We wish you a happy and healthy 2023!