By: Tracey I. Levy and Alexandra Lapes
Employers in Westchester County must pay close attention to legal developments at the county level, as the past ten months have brought an unprecedented array of new mandates specific to private employers in the county, and further requirements are likely to come. For those employers who may have overlooked it, the new mandates include paid leave benefits – first sick time and soon “safe time” leave – as well as restrictions on hiring practices – a ban on salary history inquiries, and limits on when employers can inquire about criminal history.
Earned Safe Time
Beginning October 30, 2019, employers in Westchester County must provide employees with up to 40 hours of paid safe time leave for victims of domestic violence, family offense matters, and human trafficking. Employees are eligible for safe time leave after being employed in the county for more than 90 days in a calendar year, on a full-time or part-time basis.
Employees can use their safe leave time to:
- attend or testify in criminal or civil court proceedings related to domestic violence or human trafficking; or
- move to a safe location.
In providing the time, employers cannot set a minimum increment of use but can require an employee to provide reasonable documentation that leave was used for a covered purpose. Employers must keep confidential the information an employee provides in support of a request for safe time leave, and such information cannot be disclosed without the employee’s written permission, or as required by law. Employers must keep any health or safety records on a separate form and in a separate file from an employee’s other personnel information.
Mimicking the County’s paid sick leave procedural requirements, employers are obligated to:
- post a copy of the law in English, Spanish and any other language deemed appropriate by the County, in a conspicuous location in the workplace; and
- to provide employees with a copy of the law and written notice of how it applies with 90 days of the effective date and, thereafter, upon hire.
Employers face a fine of up to $500 per violation for failing to meet the notice and posting requirements.
Earned Sick Time
Since April 10, 2019, employers in Westchester must provide employees with at least one hour of sick time for every 30 hours worked, up to a maximum of 40 hours per year. For employers with five or more employees, the sick time must be paid.
Employees can use their sick time:
- to care for themselves or a family member due to illness, injury, or health condition, need for diagnosis, care, or treatment of mental or physical illness, injury, or health condition, and for preventative medical care;
- when their place of business, child’s daycare, or child’s school closes due to public health emergency; or
- if public health authorities deem the employee or a family member a health risk to the community because of his or her exposure to a communicable disease.
As mentioned above, in addition to providing the time, employers must also conspicuously post a copy of the law in English, Spanish and any other language deemed appropriate, as well as provide employees with a copy of the law and written notice of how it applies to them as of July 9, 2019, and, thereafter, upon hire.
An employer that willfully violates the notice and posting requirements may be subject to a fine of up to $500.
The Fair Chance to Work Act
As of March 4, 2019, Westchester County law prohibits employers from discouraging applicants with an arrest record or criminal record from applying for jobs, and from asking about arrest and criminal history on the initial employment application.
More specifically, it prohibits employers with at least four employees from:
- making oral or written inquiries or statements related to criminal convictions or arrest records in an employment application;
- disqualifying an applicant from employment for refusing to answer an unlawful inquiry or statement related to criminal history, or
- specifying qualification criteria based on criminal history in a job advertisement.
Employers can inquire about criminal history after the stage of the initial employment application, but the law requires that employers conduct a relevance analysis under Article 23–A of the New York Correction law before making a hiring decision based on an applicant’s adverse criminal history. An applicant who is denied employment based on criminal history may request a written statement from the employer that details the reasons for the adverse employment decision.
The law recognizes two limited exceptions to the restrictions on criminal history inquiries:
- when the employer is subject to “state, federal or county law that required criminal background checks for employment purposes or bars employment based on criminal history”; or
- when the applicant is applying for a position at a law enforcement agency, or as a police/ peace officer.
Employers face fines up to $10,000 for willful, wanton, or malicious violations, backpay and compensation, as well as costs and reasonable attorney’s fees.
The Wage History Anti-Discrimination Law
As of July 9, 2018, employers in Westchester have been prohibited from:
- relying on a prospective employee’s current or prior wage history when determining the wages for a prospective employee, unless the information is voluntarily provided by the prospective employee to support a wage higher than the one being offered by the employer;
- requesting or requiring that prospective employees disclose current or prior wage information as a condition of being interviewed, considered, or offered employment; and/or
- seeking wage information from any current or former employer of the prospective employee.
If a prospective employee responds to an offer by providing his or her wage information to support a wage higher than the one offered by the employer, the employer may only seek to confirm that wage information from a current or former employer after obtaining written authorization from the prospective employee.
Employers are prohibited from retaliating or refusing to hire an individual based upon their salary history or because they exercised their rights under the law.