Important laws that will enter into force in New York in 2022

2022 prepares many legislative changes for New Yorkers that will greatly affect their lives. lexology.

Below we highlight 10 major changes and updates in the legislation that you need to be aware of.

1. New York City Vaccination Mandate Will Hit All Private Employers Dec. 27

New York Mayor Bill de Blasio said that by the end of the month, all private sector employees New Yorkers should receive at least one dose of COVID-19 vaccine. The mandate, which will take the form of a directive issued by the New York City Department of Health and Mental Hygiene, will apply to nearly 184 businesses. It will not be limited to businesses in specific industries or based on company size.

In accordance with the rules that were outlined at the press briefing in city ​​halls and posted on city ​​website, tens of thousands of businesses in the Big Apple will be required to keep records of vaccination of employees, as well as records of whether employees have provided compelling reasons for refusing the vaccine - whether for medical or religious reasons.

Companies will have to confirm proof of vaccination before allowing workers to enter the workplace and keep a record of this verification. Third-party contractors working on the construction site will also have to provide proof of vaccination through their employers. NY Daily News.

Despite de Blasio's encouraging views, the new mandate for the enterprise includes a provision that allows the city to impose fines of up to $ 1000 for every time an employer breaks the rules.

The new mandate is the first of its kind at the local level, while the federal vaccine rule for private employers with 100 or more employees remains suspended due to several legal concerns. The city mandate is due to take effect just days before the change of the mayor of New York. This leaves uncertainty about its future implementation.

2. New York State minimum wages and overtime wage levels will rise again on December 31, 2021

31 декабря 2021 года will increase minimum wage, tip and minimum wage for employees exempted from overtime work.

For employers in New York, the minimum hourly rate for workers will remain at $ 15 per hour. However, the minimum wage for workers in Nassau, Suffolk and Westchester counties will increase from $ 14 to $ 15 an hour. Wages for workers in the rest of New York State will rise from $ 12,50 to $ 13,20 an hour. An exception is for fast food workers anywhere in New York State, as the minimum wage for these individuals was raised to $ 1 an hour effective July 2021, 15.

Hospitality tipped employees (restaurant or hotel businesses) outside of New York will also receive a higher minimum wage. In particular, the minimum wage catering workerslocated in Nassau, Suffolk and Westchester counties will increase from $ 9,35 in cash with a tip of $ 4,65 per hour to $ 10 in cash with a tip of $ 5 per hour.

Minimum wage for food service workers in the rest of New York State (excluding New York City). Paying $ 8,35 in cash and a tip of $ 4,15 per hour will increase to $ 8,80 in cash with a tip of $ 4,40 per hour.

The minimum wage for service personnel in Nassau, Suffolk and Westchester counties will increase from $ 11,65 in cash per hour to $ 12,50 per hour. while the minimum wage for staff in the rest of the state (excluding New York City) will rise from $ 10,40 to $ 11.

Finally, the minimum wage threshold for classifying employees as exempt from overtime requirements under the executive and administrative exceptions will also increase outside New York City. In particular, executive and administrative wages in Nassau, Suffolk and Westchester counties will increase from $ 1050 to $ 1125 per week.

For executive and administrative staff located in the rest of the state (excluding New York City), salaries will increase from $ 937,50 to $ 990 per week.

Interestingly, under New York State law, there is no minimum wage requirement for professional exemption. Therefore, employers seeking to classify such employees as tax exempt will have to comply with the federal minimum wage threshold. It is currently $ 684 per week, excluding exempt situations. Otherwise, wage requirements apply.

3. The Paid Family Leave Act has been expanded to include caring for brothers and sisters

New York City's Paid Family Leave Act, in force in 2018, provides eligible workers with up to 12 weeks of protected work, paid leave to bond with a newborn, adopted or foster child; caring for a family member with a serious illness; or to assist in family situations where a spouse, cohabitant, child or parent is sent to active military service.

Currently, parental leave covers the care of a spouse, partner, child, parent, mother-in-law, grandmother, grandfather or grandchild with a serious illness. Since 1 January 2023 The amendment will expand this definition to include biological, adopted, half-brother and half-siblings.

4. Extended whistle-blower protection

In November 2021, New York City amended its whistleblower law, New York Labor Law §740... The amendments will enter into force on January 26, 2022 and will provide significant increases in favor of employees. Among the main changes are the following:

Expanding the circle of persons considered to be an "employee"

The law no longer applies exclusively to persons currently employed by an employer. The law now includes former employees as well as independent contractors.

The scope of protected events is expanding

The amendments prohibit employers from retaliating against any employee because the employee reasonably believes the action is in violation of the law or poses a significant and specific risk to public health or safety. Prior to the amendment, employees were only protected for reporting or complaining of factual violations of the law.

Employer Notice

Under the amendments, workers are only required to make “good faith efforts” to notify their employer of any potential violation before giving the employer an opportunity to correct it. In addition, workers do not need to notify their employer of a potential violation if:

(1) there is an imminent and serious danger to public health and safety;

(2) the employee reasonably believes that the communication to the employer will destroy evidence or conceal the activity;

(3) the activity could reasonably be expected to endanger the minor;

(4) the employee reasonably believes that the communication to the manager may harm the employee or another person;

(5) the employee reasonably believes that the manager is already aware of the activity, policy or practice and will not correct such activity, policy or practice.

Expanding responses

The amendments define retaliation as “adverse action taken by an employer or his or her agent to terminate, threaten, punish or otherwise discriminate against any employee or former employee exercising his or her rights under this section.”

The limitation period has been increased

The amendments extend the statute of limitations from one year to two years from the date of the alleged retaliation.

Right to trial by jury and other remedies

The amendments now give employees the right to a jury trial. The amendments also expand the options available to the employee for legal remedies and damages. This includes an advance payment in lieu of reinstatement, punitive damages if the violation was willful, malicious or meaningless, and the right to a civil fine of up to $ 10.

Accommodation requirement

Employers are now required to publish notices about the protection, rights and obligations of employees in accordance with the law. The notice should be posted in a conspicuous place, in “accessible and well-lit places”.

5. New requirements for employee monitoring

In November 2021, New York Governor Katie Hawkul signed into law a law requiring New York City private sector employers to provide written notice to employees subject to electronic monitoring before initiating such monitoring in the workplace. This new law, Chapter 6, Section 5, Section 52-C * 2 on Civil Rights, will enter into force on May 7, 2022.

The notice must be in writing, electronic record or other electronic form and confirmed by the employee in writing or electronic form. Employers are required to post the electronic monitoring notice in a prominent place that is easily accessible for employees to view.

The notice should inform employees that any and all telephone conversations or transmissions, email or transmissions, Internet access, or employee use of any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to control at any time and by any legal means.

If an employer is found to be in violation of this section, they will be subject to a maximum civil fine of $ 500 for the first violation, $ 1000 for the second violation, and $ 3000 for the third and each subsequent violation.

This law will not apply to processes that are designed to control the type or volume of incoming or outgoing email, telephone voicemail, or Internet usage, that are not designed to track or intercept email, telephone voicemail, or Internet use by a specific person, and that are performed solely for the purpose of maintaining and / or protecting the computer system.

6. Employees at risk of termination can apply to their employer to participate in a collaboration program

In October 2021, Governor Hawkul signed lawallowing employees facing termination to petition employers to participate in a joint work program. Under this amendment to the labor law, most employees can submit a written request to an employer for a joint work program prior to termination or within 10 days of termination. The employer then has seven days to respond and is not required to follow the program.

7. New Paid COVID-19 Vaccine Leave for Employees in New York

On March 12, 2021, then Governor Andrew M. Cuomo signed Senate Bill S2588... It provides public and private employees with free time to vaccinate against COVID-19. The law took effect immediately and expires on December 22, 2022.

Under the new law, employees receiving the COVID-19 vaccine must be granted paid leave from their employer for a sufficient period of time, not exceeding four hours per vaccine injection, unless the employee is permitted to receive more hours under a collective bargaining agreement, or otherwise authorized by the employer.

Each injection of COVID-19 vaccine must be paid for time at the employee's normal wage rate. This COVID-19 vaccination leave cannot be counted towards any other leave. For example, paid day off, sick leave, or any rights and benefits that employees may receive based on a collective bargaining agreement. Such leave should be in addition to any such leave.

New York City employers should be aware that New York City Council recently passed legislation on making amendments to the Safe Work and Sick Time Act requiring all private sector employers to provide their employees with paid leave to vaccinate children against COVID-19 of four hours for each of their children for one retroactive vaccine injection by November 2, 2021. The approved bill is now under consideration by the Mayor de Blasio and will enter into force immediately after it is signed.

8. Employers should develop and implement a plan to prevent the risk of infection by airborne droplets

In May 2021, New York adopted New York State Health and Fundamental Rights Law (NY HERO Act), which provides broad workplace health and safety protections in response to the COVID-19 pandemic. The NY HERO Act requires employers to develop an airborne infection prevention plan, either by adopting one of the various industry model plans issued by the NYS Department of Labor, or by developing an alternative plan that meets or exceeds specific requirements.

Employers must follow their prevention plan whenever an airborne infectious disease is classified by the New York State Health Commission as a highly contagious infectious disease that poses a serious public health risk.

Currently, the New York State Health Commission has designated COVID-19 as such, and employers must continue to implement their respective prevention plans until at least December 15, 2021, when the Commissioner decides to renew the status.

NY HERO law, among other things, requires employers to provide the plan to new hires, post it in a prominent place, and include it in their employee handbooks if the employer has one. NY HERO ACT requires employers with at least 10 employees to authorize employees to form a joint employer-employee health and safety committee with specific requirements further set forth in the law. Employers with union members have additional requirements to comply with. If an employer does not comply with the New York State Heroes Act, the state can impose fines and employees have a private right to sue.

9. New York will limit the use of artificial intelligence for the selection of employees

On December 11, 2021, New York City accepted new law on the use of automated recruitment decision-making tools (AEDT). Effective January 1, 2023, employers will be prohibited from using AEDT to screen employees or candidates for employment or promotion unless the tool has been independently tested for bias no more than one year prior to use.

Section 20-870 of the New York Administrative Code defines AEDT as “any computational process derived from machine learning, statistical modeling, data analysis, or artificial intelligence that produces simplified outputs, including a rating, classification or recommendation, that is, is used to substantial assistance or substitution for discretionary decisions in hiring decisions that affect individuals. "

AEDT does not include “a tool that does not automate, maintain, substantially assist, or replace discretionary decision-making processes and that does not have a significant impact on individuals, including but not limited to spam filter, firewall, anti-virus software , calculator, spreadsheet, database, dataset, or other dataset. " Currently Section 20-870 does not provide examples of which specific instruments included in the definition of AEDT.

The new law also provides that an acceptable independent “bias audit” includes but is not limited to testing AEDTs to assess whether they have a disparate effect on people based on race, ethnicity or gender (Federal EEO-1 Component 1 Category Persons). Following the entry into force of the new law, a summary of the most recent bias audit report, as well as the distribution date of the instrument to which such an audit applies, must be published on the employer's website prior to using such an instrument.

In addition to the above, employers who continue to use AEDT must notify every affected employee or candidate residing in the city of the following:

If information is not disclosed on the employer's website, information on the type of data collected for AEDT, the source of such data and the employer's data retention policy must be available upon written request from the candidate or employee. However, an exception applies and information does not need to be disclosed if the disclosure would violate local, state, or federal law or interfere with a law enforcement investigation.

Notably, under the new law, an employer's failure to comply with the new rules for using AEDT will result in civil fines ranging from $ 500 to $ 1500 for each violation. Each day that an employer uses AEDT in violation of Section 20-870 is considered a separate violation. Likewise, failure to provide the required notice to affected employees and applicants will also be considered a separate violation.

10. New York requires a two-step background verification process

This summer, New York City Council amended the New York City Fair Chances Act (FCA) to significantly expand protections for both applicants and current employees. The FCA, which originally went into effect in 2015 and applies to all New York City employers with four or more employees, generally prohibits employers from asking for information about an applicant's criminal record until a conditional job offer has been made. and then requires employers to participate in the Fair Chance Process before withdrawing such a conditional offer.

The new amendments, which came into effect in July 2021, now require employers to follow a two-step process when verifying job applicants' biographies. In the first step (before a conditional offer is made), the employer is required to first verify the applicant's non-criminal information (such as education and referrals). In this first step, the employer must ensure that information about the applicant's criminal history is not available to hiring decision makers.

In addition, employers must not indicate in job applications or advertisements, or at any time prior to making a conditional offer, that a “background check” will be required to obtain a job. The same requirement applies to any authorization that the applicant must sign in connection with the collection of information in accordance with the federal fair credit reporting law.

Instead, employers are encouraged to use terms such as "consumer report" or "consumer investigation report". If the employer determines that the non-criminal information does not pose a problem in hiring the applicant, a conditional offer may be made. In the second step (after the conditional offer has been made), the employer can then conduct a criminal record and, if the employer attempts to withdraw the offer, must still participate in a fair procedure.

The amendments also expand FCA's protections to include current employees and independent contractors, and expand the FCA's scope in criminal matters, including pending arrests and criminal charges. For current employees, an employer must participate in a fair chance process (with a slightly modified list of factors) before taking adverse action against an employee due to unfinished business or conviction during hiring.

In addition, employers cannot inquire or take adverse action against job seekers or employees for certain categories of conduct called “defaults”.

The New York City Human Rights Commission's Compliance Guidelines contain a non-exhaustive list of “non-charges”. Employers who wish to withdraw an offer or take adverse action against a current employee after participating in the Fair Chance Process must use the slightly modified Fair Chance Notice and must give applicants five business days (up from three) to respond.

11. New York State Ban on Styrofoam Containers

New York State Ban on Styrofoam Containers will take effect in about two weeks. This year, the state has introduced one of the strictest bans on containers made from Styrofoam (most people just call it Styrofoam).

The main problem for the state is that expanded polystyrene is obtained from oil, it takes place in landfills and cannot be recycled. This material is commonly used to make disposable containers, beverage cups or bulk packages of peanuts.

Exceptions to this rule would include the storage of raw meat, pork, seafood, poultry, or fish sold for cooking or outdoor cooking.

Styrofoam packaging is one of the most environmentally friendly waste types on the planet. Find out more about the ban here.