Navigating the minefield of New York labor and employment laws can be challenging for companies operating in New York, particularly businesses that are new to the state.
In addition to the federal employment laws that businesses large and small must be aware of, and abide by, there are many different employment laws in New York State, as well as other New York municipalities, to consider.
Employers should be cognizant that many New York state laws offer employees greater protections than federal law. Localities such as New York City often provide protections that exceed the state law as well.
Anti-discrimination laws
Both the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) protect more categories than federal law. In addition to the groups protected from employment discrimination under federal law — sex, race, religion, color, national origin, disability and age (40 or over) — the NYSHRL and the NYCHRL also prohibit discrimination based on, among other things, sexual orientation, gender identity or transgender status, marital status, or domestic violence victim status.
The NYSHRL prohibits discrimination based on familial status, while the NYCHRL prohibits discrimination based on partnership status or an individual's status as a caregiver of a minor child or individual with a disability.
The NYCHRL also proscribes discrimination based on an applicant's unemployment or on the basis of an employee's or applicant's consumer credit history, except in limited circumstances. New York City has a robust ban the box law, which restricts employers from asking job applicants about criminal convictions before making a conditional offer of employment.
In an effort to address gender-based wage gaps, New York City recently passed legislation that forbids employers from making inquiries regarding an applicant's salary history during the hiring process. Under the new law, effective October 31, 2017, it will be an unlawful discriminatory practice to ask about the salary history of a job applicant, or rely on the salary history of an applicant in determining compensation, during the hiring process.
Wage and hour laws
New York's minimum wage will continue to rise over the coming years. Currently, the minimum wage is as follows: $11 for employees of New York City employers with 11 or more employees; $10.50 for employees of New York City employers with 10 or fewer employees; $10 for employees in Long Island and Westchester; and $9.70 for employees in the remainder of the state.
The minimum wage will increase on an annual basis for each segment until the respective rate reaches $15 per hour.
New York generally follows the federal Fair Labor Standards Act (FLSA) with respect to employee exemption from overtime requirements. However, New York recently increased the minimum salary that an employee must be paid in order to be exempt.
In addition to meeting the duties-based criteria to meet the administrative and executive exemptions in New York, to be exempt an employee must be paid a salary of $825 per week in New York City for employers with more than 10 employees; $787 per week for New York City employers with 10 or fewer employees; $750 per week for employers in Nassau, Suffolk and Westchester Counties; and $727.50 for employers throughout the rest of the state.
The salary threshold is set to increase on an annual basis through December 31, 2021.
Employee scheduling
There are also certain unique laws in New York concerning employee scheduling. For example, under the state labor law, employees working in certain establishments, including retail stores, hotels and restaurants, must be given at least 24 hours of consecutive rest in a given calendar week.
New York law also provides for call-in pay for workers who may be sent home before the conclusion of their regularly scheduled shift. An employee who reports to work must be paid at least four hours, or the number of hours in the regular shift, whichever is less, at the basic minimum wage.
New York City recently passed "fair workweek" legislation, scheduled to take effect November 26, 2017. This legislation is aimed at giving retail and fast food employees more notice and predictability in their schedules, while compensating them with extra pay for last-minute schedule changes.
In the retail industry, the bill bans the practice of "on-call scheduling," which is deemed to occur when the employer requires the employee to be available to work if needed and to either contact the employer or wait to be contacted by the employer about whether they must report to work. Additionally, the bill prohibits retail stores from cancelling an employee's shift, or requiring them to come into work, with less than 72 hours' notice.
Fast food employers are prohibited from requiring employees to work back-to-back shifts in circumstances such that the first shift closes the establishment and the second shift opens it the next day, with fewer than 11 hours in between (dubbed "clopenings"), unless the employee requests or consents to work such a shift.
Additionally, fast food employers are required to provide work schedules to their employees covering at least a seven-day period, 14 days in advance of the first day of the schedule. If changes are made to the schedule, the bill mandates a premium be paid to the employees—$10 to $75, depending on whether shifts are added or reduced and the amount of notice given.
Paid family leave
Starting January 1, 2018, New York will begin phasing in, over a four-year period, what stands to be the longest and most comprehensive paid family leave law in the country. As of January 1, 2018, eligible employees can take up to eight weeks of paid, job-protected leave to care for a family member with a serious health condition, to bond with a child during the first year after the child's birth, adoption or foster care placement, or for any qualified exigency arising from a family member's call to active military service.
When fully implemented, the maximum duration of leave will be up to 12 weeks. Paid leave benefits are funded through employee payroll deductions used by the employer to purchase a paid family leave insurance policy or to self-insure.
Independent contractors
New York City is one of the few localities to provide payment protections to freelance workers. As of May 15, 2017, New York City's "Freelance Isn't Free Act" requires written contracts when a party engages an independent contractor for at least $800 in services over a 120-day period. The law also requires timely payment of all sums due.
The above laws are only examples of the laws unique to employers doing business in New York. New York businesses should take steps to comply with all of New York's employment laws and consult counsel as necessary to ensure compliance.
This article originally appeared in New York Business Journal
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
