As we usher in the New Year, employers located in New York State and New York City need to bring themselves up-to-speed on a number of new and updated laws, and related legal compliance obligations. Regular readers of this column know that 2018 was an exceptionally busy year for state and local legislators. A number of new laws were enacted, while several existing ones were beefed up or otherwise modified. In this issue, we’ll take a look at what New York employers need to know about several of the major new laws that will be taking effect in 2019. (Please note that these laws are highly complex and detailed; what follows is merely an overview.)
Sexual Harassment Laws
My office received plenty of feedback in response to our February and March 2018 articles, which discussed the #MeToo movement and the resulting changes to sexual harassment laws prompted by that movement. We continue to regularly receive inquiries regarding the heightened obligations employers now face in addressing and preventing unlawful sexual harassment. Whereas in the past having an anti-sexual harassment policy was simply smart business, as of October 9, 2018 having such a policy is mandatory in New York State. Compliant policies must include, at a minimum, examples of what constitutes unlawful sexual harassment, an overview of the employer’s complaint procedures for sexual harassment complaints, an overview of the complaint process available through governmental agencies and their contact information, and an explanation that retaliation is unlawful along a description of what retaliation is.
Employers must also provide employees with sexual harassment prevention training – a requirement that must be completed by October 9, 2019. For employers located in New York City, the City’s counterpart to the State law requires that such training be given starting April 1, 2019. Note that the city law differs from the State’s law in that it counts independent contractors as “employees,” which poses a logistical nightmare for those transportation companies that service their customers using independent contractors. The City law also requires the posting of mandatory notices informing workers of their right to a harassment-free workplace.
Minimum Wage Increase
The New York State minimum wage increased on December 31, 2018. In New York City, it is $13.50 per hour for businesses with 10 or fewer employees, and $15 per hour for businesses with 11 or more employees. In Nassau, Suffolk and Westchester counties, it is $12 per hour. In the remainder of the state, it is $11.10 per hour. There are different hourly rates for workers who regularly receive tips. These rates are scheduled to increase again on December 31, 2019.
Salary Threshold Increase for Exempt Employees
Both federal law (the Fair Labor Standards Act, or “FLSA”) and state law (New York Minimum Wage Act and applicable regulations) generally require the payment of overtime wages for work performed after 40 hours per week. The FLSA and the State Minimum Wage Act exempt employees who work in a bona fide administrative capacity from the overtime pay requirements. To be exempt, an employee must fall within the criteria established for one of these exemptions, and he or she must also be paid a minimum salary.
Effective December 31, 2018 the “salary thresholds” for administrative or executive employees for NYC employers with 11 or more employees will increase to $1,125 per week ($58,500 annually), and for those with 10 or fewer employees to $1,012.50 per week ($652,650 annually). Similar increases went into effect in Nassau, Suffolk and Westchester counties ($900 per week or $46,800 annually), and the rest of the state ($832 per week; $43,264 annually).
Note that while the FLSA recognizes a third category of exempt employees (professional employees), New York State has no salary threshold for these employees. They are instead covered by the federal salary threshold for professional employees, which is $455 per week ($23,660 annually). The U.S. Department of Labor is contemplating increasing the threshold in 2019, so stay tuned for further updates on this subject.
Paid Family Leave
While New York’s Paid Family Leave Act went into effect at the beginning of 2018, its leave entitlement and monetary benefits are being phased in over the course of a four-year period. This year the leave entitlement increases from 8 weeks to 10 weeks, and benefits increase from 50% of the employee’s average weekly wage to 55%. Further increases are scheduled for 2020 and 2021.
As a reminder, this law provides eligible employees with job-protected and partially-paid time off under three circumstances: (1) care for a seriously ill family member, (2) to bond with a newly born or newly adopted child, or (3) to take care of family matters when a family member in the military is called to active duty. Employees with a regular work schedule of 20 or more hours per week are eligible for leave after 26 weeks of employment, and those with a regular work schedule of less than 20 hours per week are eligible after 175 days worked. Benefits are provided through the employer’s disability policy and funded through payroll deductions, and while on leave employers are required to continue any health insurance benefits the employee has. Please consult our July 2017 article on this subject for further information.
NYC Lactation Room Law
New York’s Labor Law already guarantees the rights of nursing mothers to express milk in the workplace. Among other things, the Labor Law requires that employers either provide reasonable unpaid break time (or permit the use of paid break and/or meal time) each day for an employee to express breast milk for her nursing child for a period of up to three years. Employers are also required to make reasonable efforts to provide a private room or other location, other than a restroom, for the purposes of expressing breast milk. Lastly, employers are prohibited against discriminating against an employee who chooses to express breast milk in the workplace.
Beginning March 18, 2019 City employers with 15 or more employees must designate a dedicated lactation room for breast milk expression and establish policies and procedures for their use. For details regarding the specific requirements for lactation rooms and lactation room policies, please see our November 2018 article.
Keeping up with ever-changing employment law changes is never an easy task, even for attorneys. While it’s tempting to throw one’s hands up and ignore the issue if your company is not compliant with one or more of these laws, they all carry penalties for non-compliance. Accordingly, we strongly recommend that you start the New Year off right by discussing these laws (and others we haven’t covered in this article due to space limitations) in further detail with your attorneys, PEO and/or other advisors.