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E-NEWSLETTER: MARCH 2019

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Focus on Employment Law

Top 5 New and Recent Employment Law Regulations that Businesses Need to Know

Several laws have recently become effective that will have an impact on business in 2019 throughout the New York metro area, but especially those with operations in New York City. This article outlines some of the recent and pending changes businesses should be aware of.

Predictive Scheduling Law
The new predictive scheduling law is to become effective November 26, 2017, in New York City. The new law states that businesses need to provide employees with their schedules no less than 72 hours before the first scheduled shift. Additionally, if there are any schedule changes, those changes also need to have at least a 72-hour notice before becoming effective. The employees that will be affected by any of the schedule changes must be personally notified. That entails communicating through email or electronic means where necessary, posting a new schedule, personally notifying the employee of any cancellations to their schedule, and getting either written consent to add new shifts for the employee or notifying the employee of the addition of new shifts. An employer also may not require an employee to call in fewer than 72 hours before their shift to find out whether the employee should report for the shift, or schedule the employee for an on-call shift.

Specifically, for fast food and retail locations, in addition to the above regulations, an employer also must:

  • Pay premium wages if there is a schedule change with less than 14 days’ notice
  • Not schedule an employee for a consecutive closing and opening shift
  • Offer additional work to existing employees before hiring new employees

If a business violates the predictive scheduling law, the employer may be required to pay the employee anywhere from $300 to $500 per employee, per violation. Additionally, the New York City of Division of Labor Standards may impose civil penalties. The law also includes a new specific records mandate, which states that an employer must maintain records of compliance for three years and, upon request, must allow employees to have access to certain records. Moreover, any notices to be posted must be posted in English, as well as any other language that is spoken by at least five percent of the employees at a location.

Paid Family Leave Act
The Paid Family Leave Act went into effect on January 1, 2018 for qualified employees in New York. The act provides up to 12 weeks of paid leave for a family when a new child is born or adopted, a loved one needs care for a serious health condition, or a family member is called into active military service and the employee must take time off to help relieve family pressures. In 2018, an employee received eight weeks of paid family leave; in 2019 and 2020, ten weeks will be available, and in 2021, twelve weeks will be available. Below is a breakdown of the maximum percent of the employee’s average weekly wage (AWW) and the New York State Average Weekly Wage (SAWW) they will be eligible to receive:

  • 2018—50% of both AWW and SAWW
  • 2019—55% of both AWW and SAWW
  • 2020—60% of both AWW and SAWW
  • 2021—67% of both AWW and SAWW

Employees may take the maximum benefits during any 52-week period.

Under this act, the employee is guaranteed to be able to return to their job after the leave, as well as continue use of their health insurance. If an employee is contributing to their health insurance, the contributions will still be taken out of the portion paid during their leave. Employees with a regular work schedule of more than 20 hours per week are eligible after 26 weeks of employment, whereas an employee with a regular work schedule of fewer than 20 hours per week is eligible after 175 days worked.

An employer may not require an employee to use all their sick leave and/or vacation before using paid family leave. As an employer, make sure that the business is carrying Paid Family Leave insurance. Generally, the Paid Family Leave insurance will just be added on to the disability insurance policy the business already carries. Also, be sure that there is a workforce notice posted stating that the business has Paid Family Leave insurance. An employer must ensure that their employees are aware that they have Paid Family Leave. Employers must also update written material with the new Paid Family Leave Act, or if there are no existing written materials, such as an employee handbook, provide employees with such material.

Minimum Wage Increases
The Minimum Wage rates are set to increase each year on December 31, until the minimum wage reaches $15.00 per hour. Employers must be sure to have a posted minimum wage information poster within their establishment. On December 31, 2018, the rates in New York will be:

  • $15.00 per hour for New York City large employers (11 or more employees)
  • $13.50 per hour for New York City small employers (10 or fewer employees)
  • Long Island and Westchester: $12.00 per hour
  • Remainder of New York State: $11.00 per hour

The Establishing Protections for Freelance Workers Act
Under New York City's Freelance Law, which went into effect on July 24, 2017, an employer must:

  1. Provide a written contract with a freelance worker for services worth $800 or more
  2. $13.50 per hour for New York City small employers (10 or fewer employees)
  3. Be sure all payments to freelance workers are made on a timely basis and paid in full, and
  4. Refrain from any type of retaliatory or adverse action against freelance workers who are exercising the rights granted to them under the Freelance Laws

In New York City, an employer who hires a freelance worker must also refrain from using waivers that prohibit or limit the rights of a freelance worker under the Freelance Law, waive the right or limit the right for a freelance worker to collect any relief from the employer in a proceeding, waive or limit any legal action to arbitration or no jury trials, or limit or waive the right of a freelance worker to disclose a contract or agreement to the director of the Office of Labor Standards.

Salary History Inquiry Ban
On October 31, 2017, this amendment to the New York City Human Rights Law became effective. The law prohibits New York City employers from asking prospective employees about their past salary histories during the hiring process.

The amended law makes it an unlawful discriminatory practice for an employer to:

  1. Inquire about the salary history of an applicant for employment; or
  2. Rely on the salary history of an applicant to determine the salary, benefits or other compensation of that applicant, during the hiring process

An employer may discuss the proposed or anticipated salary for the position, as well as the applicant’s salary expectation, expectations concerning revenue or sales commissions payable to the applicant, whether the applicant will be forfeiting equity or deferred compensation by taking the position and consider the applicant’s salary history if the applicant voluntarily, and without prompting, discloses. If an applicant is a current employee that is seeking an internal transfer or promotion, the law does not prohibit the consideration of the employee’s prior salary history.

Under the New York City Administrative Code § 8-126, if the New York City Commission on Human Rights finds that an employer has violated that salary history inquiry ban, it may impose a civil penalty of up to $125,000 if the violation was unintentional, and $250,000 if the violation was willful and malicious. An applicant who is successful in a civil lawsuit may also recover back pay, front pay, compensatory damages, and attorney’s fees.

If you have any questions about these or any other employment laws affecting your business, contact me by email at AKoblenz@swc-law.com or call 516-228-1300.

 


Sahn Ward Coschignano, PLLC is one of the region’s most highly regarded and recognized law firms for a reason. Its commitment to recruiting the finest attorneys is surpassed only by that of providing its clients with the highest-quality legal representation, counsel and advice.



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