New York Employers Archives - Levy Employment Law

22

May, 2023

NYS Has Raised the Stakes for Employers That Penalize Employees for Any of 15 Types of Job-Protected Leaves

Employers in New York may be required to provide employees with up to 15 different types of leave, some paid, and some unpaid, some for a few hours, and some extending weeks or even months. Employers are generally aware of certain big categories of obligations with regard to providing employees with time off, like family medical leave and sick leave. But there are a host of other leave categories that may be unfamiliar to them. A recent change to the New York State Labor Law has raised the stakes for employers to know when employees are entitled to leave and ensure that employees are not penalized for taking time off for a legally-protected reason.

Categories of Leave for NYS Employers

As a quick reference point and reality check, the full panoply of leaves available to employees in New York State include the following:

paid/unpaid sick leave;
paid family leave;
paid/unpaid COVID quarantine leave;
partially paid leave for jury service;
paid time off to vote in elections;
paid/unpaid time off for blood donors;
unpaid leave under the federal Family and Medical Leave Act;
unpaid leave for military service;
unpaid leave taken as a reasonable accommodation of a medical condition, religion, or for pregnancy, childbirth or related conditions;
unpaid break time for nursing mothers;
unpaid leave for victims of domestic violence, sexual assault or human trafficking (some localities in New York State require paid time off for this purpose);
unpaid leave to testify as a crime victim;
unpaid family military leave;
unpaid leave for bone marrow donors; and
unpaid leave as a first responder.

Variations in whether an employee needs to be paid for the time off, as noted above, generally depend on the size of the employer. Also, some of the leave laws apply to employers of any size, while many others do not become applicable until the employer has a minimum of 10, 20 or more employees, depending on the specific law.

NYS’s New Restrictions on No-Fault Attendance Policies

New York State has adopted an additional enforcement mechanism to protect employees who take time off that is legally protected under federal, state or local law. The New York State Labor Law was amended earlier this year to provide that employees cannot be retaliated against for using any “legally protected absence.” The new law defines it as “retaliation” for employers to assign points or demerits against employees for being absent from work for a legally-protected reason, where those points can then result in disciplinary action, delay or denial of a promotion, or loss of pay.

Pitfalls for Employers

Employers that fail to grant employees time off and satisfy other requirements already face liability under the respective leave laws. In addition, if an employee is absent from work for a reason that is protected under one of those laws, and the employee is then penalized in some fashion for that absence, the employer now may face additional liability under the Labor Law, including penalties starting at $1,000 and going as high as $20,000 for each employee penalized, an award of liquidated damages, and an order rehiring or reinstating the employee together with lost pay or an award of front pay in lieu of that. Individuals can also file a civil action for violating the retaliation prohibition, and recover liquidate damages of up to $20,000, costs and reasonable attorneys’ fees.

Consider Adopting Precautionary Measures

Employers should confirm with legal counsel which of the leave laws actually apply to their employee population. Employers that have robust employee handbook policies, that reference each of the applicable categories of legally protected leave under New York law, may be able to rely on that reference point to provide notice to employees. A handbook can also serve as a resource for managers to ensure they are properly applying the leave of absence policies.

Employers with less robust handbook policies, or none at all, have additional hurdles to achieve compliance. Managers need to be schooled in the range of leaves available, and know to seek advice whenever there is any question whether a request for leave is for a job-protected reason.

In addition, systems that are used to track employee attendance should be designed to include fields that capture the range of legally protected absences that an employee might take. That way the employee has the right place to code the absence to reduce the risk that it will be improperly counted against a no-fault attendance policy.

By Tracey I. Levy

20

April, 2023

NYS Adds New Section, Range of New Provisions to Its Model Sexual Harassment Prevention Policy

An updated model sexual harassment prevention policy issued by New York State offers improvements and detractions relative to the original 2018 version, adds new information, and incorporates more recent changes in the law. Among the greatest improvements are the increase in scope and elimination of footnotes. Among the greatest detractions is the length – which has now ballooned from seven pages to eleven. The largest category of new information is a new section on bystander intervention.

Correcting Earlier Flaws

The new model policy partially corrects one of the most notable flaws in the original, which was a narrow focus on sexual harassment prevention. While the earlier approach was consistent with the state law mandate of what needed to be addressed in a written policy, practically speaking it meant that many employers only issued policies prohibiting sexual harassment, and had little or no policies to address other forms of unlawful harassment. The new model policy recognizes that the law prohibits harassment based not only on sex, but on a range of protected characteristics and the intersectionality of multiple characteristics, and directs that all such behavior should be reported in a manner consistent with the policy.

Footnotes really do not belong in an employee handbook policy, and the state’s new model policy shifts a former footnoted reference to independent contractors, gig workers and the like into the body of the policy. It is no longer necessary to read the fine print for clarification that those individuals are also covered.

New Detractions

While admirably comprehensive, the policy really needed to be shortened, not lengthened by 50 percent. The likelihood of most employees reading what the model policy has become is slim at best. While redundant of the content that follows, the policy tries to cure for that with a seven-point summary on pages two to three. The state’s training mandate also helps in that it ensures employees will be informed annually of all the key points contained in the policy. But really, an editing pen would have been useful.

Providing New Information

The additional length largely results from new material in this version of the model policy. There is an entirely new section on bystander intervention and the ways in which employees can support each other when they observe harassing behavior. Other additions include:

specific examples of how harassment can occur at the intersectionality of multiple protected characteristics;
an explanation of gender diversity and the definitions of cisgender, transgender and non-binary individuals;
emphasis that the intent of behavior does not neutralize a harassment claim, as the focus is on how behaviors impact someone else;
clarification that harassment also can occur in a remote environment, including through remarks made or visual images displayed over virtual platforms; and
a requirement that supervisors and managers accommodate the needs of those who have experienced workplace harassment to ensure a safe, supportive workplace.

Keeping Up with Changes in the Law

Finally, the model policy is updated to incorporate changes to the law since it was first drafted in 2018. Those changes include clarifying that harassment need not be severe or pervasive to be illegal, and adding information about the state’s sexual harassment hotline.

Employers Have Options

Now is the time for employers that have not been updating their own harassment prevention policies to incorporate the more recent changes in the law. Beyond those legal changes, employers can, but are not required to, adopt the model policy in its totality. Alternatively, employers can maintain their own policies, provided they include eight key elements:

a prohibition against sexual harassment consistent with the state’s guidance;
examples of prohibited conduct;
information about the applicable federal, state and local legal standards and available remedies;
reference to a complaint form;
an investigation procedure that ensures due process for all parties;
information on where employees can go externally with their complaints, and their options for redress;
a clear statement that sexual harassment is a form of employee misconduct, subject to sanctions for those who engage in it or supervisors who knowingly allow it to continue; and
a clear statement against retaliation.

In addition, the model policy states that employers can tailor the model to their individual needs, but at a minimum no section in the model policy should be omitted. Those sections outline the purpose and goals of the policy, summarize the key provisions, define sexual harassment, define retaliation, address reporting of sexual harassment complaints, describe supervisors’ responsibilities, address bystander intervention, describe the complaint handling and investigation process, and reference legal protections and external remedies. Employers should check whether their own policies cover all those subjects and, if not, consult with legal counsel on how best to update their policies to meet the new legal standard.

By Tracey I. Levy

17

April, 2023

Rethink Employee Confidentiality Clauses as Fed Agency Restricts Scope Nationwide

How do you keep your core business interests and the goings on at your organization confidential when it feels like those strictures are under attack from multiple government entities? It may be time for you to redefine your priorities with respect to confidentiality.

Siege on Confidentiality and Non-Disparagement Clauses

There has, indeed, been something of a siege on confidentiality and non-disparagement clauses in the past five years. Originating with the #MeToo movement and disgust over the behaviors that had been quietly resolved through agreements that ensured the offending conduct would not be discussed with others, legislatures initially at the state, and more recently at the federal, levels have been passing laws prohibiting employers from binding employees to such agreements. As we discussed in our prior articles earlier this year (on federal and New York State confidentiality clause restrictions, multi-state compliance, and contractor agreements), the legislatures have not necessarily limited their restrictions to the types of behaviors reported in #MeToo. Rather the most recent laws go well beyond sexual harassment and sexual assault, to preclude limitations on disclosure of any potentially unlawful workplace behavior.

The myriad variations in these laws can make for cumbersome drafting of confidentiality and non-disparagement clauses, with multiple carve-outs and exceptions. Enter, then, the latest developments in this area, a recent decision by the National Labor Relations Board (the Board) and interpretive guidance issued by the Board’s general counsel, and it may be tempting for some employers to throw their hands in the air.

Recent Board Decision Adds Further Restrictions

In McLaren Macomb, 372 NLRB No. 58 (Feb. 23, 2023), the Board determined that the confidentiality and nondisparagement clauses embodied in an employer’s severance agreements were unlawful because they had a chilling effect on employees’ exercise of their “Section 7 rights” (essentially the right to organize collectively with regard to the terms and conditions of employment as provided under the National Labor Relations Act (NLRA)).

The clauses at issue included:

a provision that the terms of the Agreement should be kept confidential as to third parties and not be disclosed except to a spouse, for tax or legal advice, or as compelled by a court or administrative agency;
a provision that “information, knowledge or materials of a confidential, privileged, or proprietary nature” known to the employee through the employee’s job should be kept confidential; and
a prohibition against statements to employees or the general public that could disparage or harm the image of the employer or any of its affiliated entities and individuals.

The Board determined that the nondisparagement clause had an unlawful chilling effect on employees’ exercise of their Section 7 rights because:

it was not limited to matters regarding past employment with the employer;
it was not limited to criticism of the employer’s product or services;
it applied not simply to the employer but also to affiliated entities and individuals;
it was not time bound;
it was broad enough to preclude employee conduct regarding a legally protected labor issue or terms and conditions of employment; and
employees have a clear legal right to publicize labor disputes provided they do not do so in a manner that is too “disloyal, reckless or maliciously untrue.”

The Board similarly determined that the confidentiality provision was unlawful because it prohibited disclosure to any third person, with limited exceptions. The Board reasoned employees thereby would be inhibited from filing an unfair labor practice charge or assisting a Board investigation into the employer’s use of the severance agreement. The Board also felt the clause would prohibit employees from discussing the agreement with their coworkers or a union, and thereby supporting them with regard to workplace issues.

The Board’s concern about a chilling effect arose from the phrasing of the clauses themselves. The Board therefore held that even if an employer never had or would enforce the clause in a manner that interfered with an employee’s Section 7 rights, the broad words themselves were sufficient to violate the NLRA.

NLRB General Counsel Guidance Expands Restrictions

A month after the McLaren decision, Board General Counsel Jennifer Abruzzo issued interpretive guidance, in which she stated, among other key points:

the Board’s decision would apply retroactively;
most likely, only the unlawful clauses in an agreement would be invalidated, and not the agreement in its entirety;
the Board’s reasoning applies equally to other types of agreements with employees, such as offer letters;
narrowly-tailored confidentiality clauses that restrict the dissemination of proprietary or trade secret information for a period of time may be lawful;
narrowly-tailored non-disparagement clauses that preclude maliciously untrue statements that meet the legal definition of “defamation” may be lawful;
disclaimers or a “savings clause” may be helpful but will not necessarily cure overly broad provisions, and are recommended to enumerate nine specific ways in which employees can exercise their Section 7 rights; and
a range of other clauses, including noncompetition and nonsolicitation clauses, no poaching clauses, broad releases and covenants not to sue that go beyond employment claims, and cooperation clauses also may be suspect, depending on how they impact employees’ ability to exercise their Section 7 rights.

These new developments are immensely broad in their potential application as they invalidate clauses that are so commonly used as almost to be boilerplate language. Also, while the NLRA protects activity by individual contributors, and not supervisors, it is not always clear who qualifies as a supervisory employee, particularly in a nonunion environment. The General Counsel further cautioned that even supervisors are protected from retaliation for NLRA-protected actions. The NLRA additionally is not limited to unionized workplaces but rather covers every non-supervisory employee throughout the country. Finally, the retroactive application of the McLaren decision means that previously-signed agreements with employees are also at risk of being invalidated.

Employers Can Still Protect Their Core Business Information

So where does that leave employers? As a starting point, the new NLRB restrictions and the series of #MeToo-inspired restrictions have one common thread, in that they all recognize employers have a valid interest in protecting their trade secrets and proprietary information. A starting point, therefore, is for employers to reframe their agreements to separately and concisely protect only those legally recognized interests.

To the extent employers additionally want to ensure that employees will not say bad things about them, or recount information about bad things occurring at the organization, they need to get legal advice. As discussed in our prior articles, employers may be restricted from imposing confidentiality requirements as to certain behaviors, or at certain stages of the employment relationship. These restrictions may be outright prohibitions, or they may take the form of requiring disclaimers, consideration periods or additional waiver language.

Critically, since some of these changes are on a federal level, every agreement between an employer and an employee potentially is impacted. One issue to be discussed with legal counsel is whether, and to what extent, the employer wants to include in its agreements a disclaimer as to the types of employee activities that are not subject to a confidentiality or nondisparagement clause. At some point, the exceptions begin to swallow the rule and call into question the efficacy of having broad confidentiality or nondisparagement language.

Revisit Agreements with Legal Advice

The NLRB’s recent pronouncements are not the death knell for confidentiality and non-disparagement agreements. They do, however, necessitate revisiting those agreements, even if they were last reviewed as recently as February 2023, and identifying the information that an employer considers most critical to preserve as confidential, and the information as to which employers may need to tolerate some vulnerability of disclosure. Employers that take no action at this time and keep their current agreements in place run the risk that their confidentiality and non-disparagement clauses will be invalidated in their entirety, leaving the employer with no protection of even its core business interests.

By Tracey I. Levy

14

February, 2023

Workplace Breastfeeding Laws Offer General Consistency with Local Nuance

Breastfeeding protections have gone mainstream. Through the magic of a budget spending bill, nursing employees in workplaces throughout the country now have legal protections that will afford them break time and access to spaces outside of toilet stalls in which to express breastmilk. That is a sea change in many parts of the country, and a more modest shift for employers in the tri-state area of New York, New Jersey and Connecticut, where these protections have been afforded to varying degrees under state and local laws going back nearly a decade.

Amazingly, the new laws are fairly consistent with those already in existence, which makes compliance less burdensome for employers. The laws focus on requiring three things:

suitable space;
sufficient time; and
protected access.

Suitable Space

Make it Private

Nursing a baby often can be done discretely even in public, under cover of a light blanket, shawl or loose garment. Expressing breast milk to be stored in bottles for later use is an entirely different operation and experience, as anyone who has seen or used the various pumping apparatuses well knows. For that reason, the existing and new laws entitling employees to suitable space for expressing breast milk all prioritize that the space offer “privacy.” Often the laws clarify that means the space should be “shielded from view” and “free from intrusion.” And to dispense with the most obviously private but apparently not suitably hygienic option, the laws consistently state that the space cannot be a restroom or toilet stall.

Employers looking to achieve compliance should consider options like a private office or conference room with solid walls, blinds, or filtered glass – and a lock on the door or at least signage advising against entry while the room is in use. Even a storage closet, if appropriately cleared out, may be fit for this purpose.

Consider Proximity

While the federal law only mandates privacy, the state and local laws often also consider accessibility. New York, New Jersey, Connecticut and New York City, for example, all require that the designated space be in close proximity to the employee’s work area. This criterion serves employers’ interests, as well, in that it minimizes the time that the employee needs to spend away from the work area.

Furnish Appropriately

Some of the laws additionally require that the designated space be outfitted appropriately to its purpose. New York State and New York City require that the space be well lit and include a chair and working surface. New York City and Connecticut require access to an electrical outlet, and New York City further requires that employees have nearby access to refrigeration. New York State recognizes greater variability in work locations and therefore requires access to an outlet only if the workplace is supplied with electricity, and access to refrigeration if it is available. Connecticut also requires nearby refrigeration or an employee-provided cold storage unit. The New York state and city versions finally require access to clean running water.

Optimally, therefore, employers looking to achieve compliance should be looking to provide the following furnishings and equipment:

a chair and work surface;
ample light;
an electrical outlet; and
nearby running water and refrigeration.

Employers that incorporate those items will meet their obligations under the current jurisdictional variations in the law.

Undue Hardship Is Considered

Employers with fewer than 50 employees are exempt from the federal PUMP Act if they can demonstrate that compliance would impose an undue hardship. Comparable state and local laws similarly recognize an undue hardship exception, but employers invoking this exception should be prepared to demonstrate that they reasonably explored options for providing suitable space and were unable to do so.

Sufficient Time

Access to a suitable location would be virtually meaningless if employees could only use it on their meal break. The laws therefore additionally require employers to provide “reasonable” break time for employees to express breastmilk. The federal “PUMP Act” grants this right to break time for up to one year after the child’s birth. The New York State version extends the protection to up to three years after childbirth, while other state laws are not specific as to duration.

New York State has issued guidance that employees are entitled to break times of at least 20 minutes in duration in these circumstances, but can use more or less time as needed. The U.S. Department of Labor previously had advised that a break of 15 to 20 minutes to pump, plus some time for set up and clean-up, was most common. The DOL has removed any specific reference to duration in its most current Fact Sheet on break time for nursing employees. Employers generally are not required to pay employees for break time taken to express breast milk, provided the time is actually a break and the employee is not performing work while pumping.

Reasonableness is a Variable Threshold

“Reasonableness” is determined through the same process that employers are expected to follow for accommodating employees for other legally-protected reasons. In New York City, the process is called a “cooperative dialogue,” and the city’s phrasing is indicative of that which is expected of all employers in this context – some degree of discussion, consultation and consideration of the employee’s needs in relation to the nature, size and operations of the employer’s business.

The duration of break time needed for expressing breast milk may include factors beyond the employer’s control, such as the speed of the pump itself, as well as factors that the employer can influence. For example, employers that offer a secure location for employees to store their breast pump in close proximity to the employee’s work space and/or the designated break room can thereby reduce the time needed for set-up and cleanup.

One of my clients was frustrated that an employee was taking hour-long breaks to express breast milk. In speaking with the employee, the employer learned that each break period, the employee would leave the work area, go out to her car in the parking garage to retrieve her breast pump and walk to the designated room (waiting for elevators along the way), and then return her pump to her car before coming back to the work area. A secure storage solution was all that was needed to cut the break time in half. The more comfortable an environment the employer can provide, and the fewer obstacles an employee faces in cleaning and storing needed equipment for pumping, the less time an employee will need to be away from productive work.

Protected Access

All the laws related to nursing employees include an assurance that the break time and designated spaces are legally-protected. This means that employers cannot discriminate or retaliate against employees for requesting or using the time or facilities, or for breastfeeding in the workplace. Some of the laws, including New York State, New York City and Connecticut, additionally require that employees receive notice of their rights with regard to expressing breastmilk. In New York, the state and city laws additionally require employers to have written policies with specifically-delineated provisions.

Compliance with these varied laws is more readily achievable than, for example, many of the paid leave laws. Employers must still, however, note the variations in legal requirements and adjust their workplace practices accordingly.

By Tracey I. Levy

10

February, 2023

Pay Transparency Laws Can Help Workers, But Not in the Way Advertised

Led by the rationale proffered by legislatures in support of pay transparency laws, I have been thinking about them from the wrong perspective. Promoted as a means of closing the gender wage gap, I have been vocal in my criticisms that the laws will be of little or no effect for two key reasons. First, because they do not get to the root problems that produce most of the pay gap, as I discussed in this blog article. Second, because even where they provide useful information for negotiations, they do not overcome the tendency of certain groups to “undersell” themselves.

Reflection on their efficacy is important, because the laws are proliferating and the existing versions are already being tweaked. Less than three months after it took effect, New York City is considering amending its pay transparency law, partly to align with the New York State version of the law, and partly to capture forms of compensation beyond base salary. The city’s proposed amendments to the law will not do anything to address its deficiencies in resolving the gender pay gap.

Connecticut, on the other hand, currently has an earlier version of pay transparency, which requires employers to disclose salary ranges to job applicants during the hiring process. The state is considering amending the law to align with the approach in New York, California, and Colorado, and require that salary ranges appear in job postings. That is a distinction with a difference. Not so much for the gender pay gap problem, but relative to the new way in which I am considering the benefits of pay transparency.

Reconsider Pay Transparency as Serving a Different Beneficial Purpose

How are pay transparency laws helpful to U.S. workers? Sometimes you need to consider things from a different perspective. The aha moment for me was in the epilogue of Barbara Ehrenreich’s book, Nickel and Dimed, which I recently had the opportunity to read. Reflecting on her own experience as a journalist undercover, temporarily occupying the space of a low-wage worker, Ehrenreich observed that her coworkers in those positions had little opportunity to comparison shop for higher-paying positions.

Time is money, transportation is money, and when you have little or no money saved, you cannot afford to hop between multiple employers and interview processes. You only go to as many places as it takes to land a job, even if it is not the best job.

We Don’t Talk Much About Money

Friends and family may provide few insights into other work opportunities because, at all levels of society, most people tend not to say how much they are paid. This was illustrated last month, when The New York Times ran a Sunday feature on people’s compensation, “27 People on the Streets of New York Talk About How Much They Make.” They reported that most of the people they stopped on the streets (nearly 400 were asked) declined to speak with them on the record about how much they earned.

Similarly, from the employer’s perspective, I suspect my own approach is similar to that of most small business owners. Even this past year when I knew pay transparency laws were on the horizon I did not list pay in my job postings. In my interviews with candidates, pay is usually one of the last points covered, and only if I am asked. But why is that? I have done benchmarking and believe I am paying on the higher end for the roles I am filling. And yet I have historically hidden that fact. I could say I wanted people to work for me because they were interested in the work and not the money. While true, I am not sure that was my motive. Rather, I think I am just reticent to talk about pay, worried that my benchmarking is wrong, or that I am planning to offer too much and should pay less. I hedge as long as I can before committing to compensation to reassure myself that I am not overpaying the person or, if I am, that it is because they are a great candidate and worth the investment.

Comparison Shopping Is a Valuable Benefit

Overcoming that reticence and secrecy to allow for “comparison shopping” is how pay transparency laws can make a difference for workers. Imagine if every help wanted ad in the paper or online included a wage range. Employers would be disinclined to inflate that number, lest too many of their current employees start to question their pay, and they would not want to lowball it too much, lest they lose out on attracting the best candidates.

How valuable would it be for people who are barely getting by financially to have salary information for dozens of open jobs at their fingertips? They could quickly pinpoint the highest paying opportunities and prioritize applying for those. Would that equalize pay between men and women, or between individuals of different races? I am not sure that it would for the various reasons I have covered in prior articles. But it sure might help those at the bottom rungs of the pay scale do just a little bit better. Over time those incremental differences can mean the difference between paying for food, shelter, clothing and transportation, versus having to forego one or more basic necessities.

For low wage workers, then, there is a benefit to pay transparency laws. And for any worker the laws force disclosure of data that allows for some degree of benchmarking and comparative analysis, which can help inform wage negotiations. But at more skilled, higher-level positions, the compensation range for posted positions tends to get wider, so the comparative data is less helpful.

New York City’s Newest Contemplated Changes Will Not Help

Currently, New York City only requires employers to disclose base salary, not incentive compensation or commissions. The City Council is considering amendments to the law that would require inclusion of the job description, which would make the law consistent with New York State’s pay transparency law that takes effect in September 2023. The amendments would also require employers to describe the non-salary or non-wage compensation for the position, including bonuses, benefits, stocks, bonds, options and equity or ownership. All that additional data will make for a mighty long (and pricey) job posting for employers, and in my experience those non-wage factors can encompass so many variables that the information employers include in their postings in response to such a mandate will be of little value to applicants.

Rather than bog down employers with further mandates and clutter their job postings to such a degree that the most useful information gets lost in the fine print, local and state governments would be better served in recognizing the value of mandating pay transparency in job postings simply as to base salary. For those who lack the time and resources to interview widely or otherwise collect comparative pay data, it could be invaluable. As for solving the gender pay gap, move past the quick fix window-dressing of pay transparency. Instead, consider the societal changes needed to really make a difference.

By Tracey I. Levy