On October 28, 2021, New York Governor Kathy Hochul signed into law Senate Bill S4394A, which amends section 740 of the New York Labor Law (NYLL) to enhance protections for private-sector employees who allege retaliation for reporting violations of and “law, rule or regulation.” While cases alleging whistleblowing and the reporting of unsafe working conditions have been on the rise since March 2020, Governor Hochul indicated a need to ensure employees’ ability to speak out, stating that “protecting workers must be part of our overall economic recovery efforts.”
The New York State Division of Human Rights (NYSDHR) recently announced that for complaints filed on or after October 12, 2021, it will no longer discontinue complaints following private settlements. This announcement comes as a significant change in the division’s long-standing practice of allowing parties to privately settle complaints before case closure.
In accordance with the New York Health and Essential Rights Act (NY HERO Act), on July 6, 2021, the New York State Department of Labor (NYS DOL), in consultation with the New York State Department of Health, published the Airborne Infectious Disease Exposure Prevention Standard and Model Airborne Infectious Disease Exposure Prevention Plan. Although the NYS DOL initially published the standard and model plan only in English, the NYS DOL has since furnished the standard and the model plan in Spanish. In addition to the non-industry specific model plan, the NYS DOL has created 11 industry-specific templates, which are available only in English.
On September 23, 2021, the New York City Council passed six bills—a first-of-its-kind legislative package directed at gig economy workers—that seeks to provide protections to the city’s food delivery workers. The bills, each of which amend the administrative code of New York City, have been sent to Mayor Bill De Blasio, who has already voiced his support for the legislation. The legislative package is the culmination of a lengthy controversy in New York City regarding the rights and protections that should be afforded to gig workers. Notably, many states, including New York, have been engaged in prolonged legal battles over the questions relating to the treatment of gig workers.
On September 6, 2021, New York State Commissioner of Health Howard A. Zucker designated COVID-19 as “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.” As a result of the commissioner’s designation, employers are required to activate their airborne infectious disease exposure prevention plans in accordance with the New York Health and Essential Rights Act (NY HERO Act).
The New York attorney general’s August 3, 2021, report regarding the sexual harassment allegations brought against former New York governor Andrew Cuomo, “Report of Investigation Into Allegations of Sexual Harassment by Governor Andrew M. Cuomo,” contains extraordinary detail to support the conclusion that Cuomo “sexually harassed a number of current and former New York State employees.” Beyond noting the political consequences of the investigation, employers in New York and elsewhere may wish to consider utilizing these recent developments as an opportunity to reassess their workplace practices to minimize the likelihood of events occurring similar to those described in the report. Among the many potential action items and considerations, below are tips on training, education, and communication that employers may wish to explore as a result of the Cuomo report.
On August 3, 2021, New York City Mayor Bill de Blasio announced that proof of vaccination would be required for individuals to enter certain indoor establishments. In a first of its kind mandate, New York City officially implemented the “Key to NYC” through Emergency Executive Order 225, which became effective on August 17, 2021.
On May 5, 2021, New York State Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which “mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic.”
On May 5, 2021, New York Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which mandates workplace health and safety protections from any airborne infectious disease that the commissioner of health has designated as “a highly contagious communicable disease that presents a serious risk of harm to the public health.” On June 11, 2021, Governor Cuomo signed legislation to amend the NY HERO Act. The amendments extend the effective date of section 1 of the act, pertaining to the creation and adoption of airborne infectious disease plans. Pursuant to the amendment, section 1 will take effect on July 5, 2021. Section 2, which pertains to the establishment of workplace safety committees, will take effect on November 1, 2021.
On May 5, 2021, New York Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which mandates extensive new workplace health and safety protections for all airborne infectious diseases. This action was quickly followed by the New York State Assembly’s May 10, 2021, and the New York State Senate’s May 14, 2021, introduction of identical bills to amend certain provisions of the NY HERO Act.
Echoing his mantra of building back better, on May 5, 2021, New York State Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic.
States have been busy when it comes to marijuana laws. Before the mid-2010s, employers tended not to worry about state marijuana laws because of marijuana’s illegal status under federal law. However, those days are over, and state marijuana legalization laws continue to affect how employers can run their workplaces.
On March 31, 2021, New York Governor Andrew Cuomo signed into law the Marihuana Regulation and Taxation Act (MRTA), which legalizes the adult recreational use of marijuana and revises Section 201-d of the New York Labor Law. The MRTA’s antidiscrimination employment provisions took effect immediately.
On March 12, 2021, New York State enacted a law that requires all employers to provide their New York employees with up to four hours of paid time off per injection to receive a COVID-19 vaccine. At the time of enactment, the law did not provide guidance on certain key issues. Recently, the New York State Department of Labor published answers to some questions that many employers have been asking.
On March 12, 2021, Governor Andrew Cuomo signed into law legislation requiring all employers, both public and private sector, to provide employees with up to four hours of paid time off per injection to receive the COVID-19 vaccine. The law took effect immediately.
In November 2020, voters in five states (Arizona, Mississippi, Montana, New Jersey, and South Dakota) voted in favor of legalizing medical and/or recreational marijuana. Since then, there have been several developments within the marijuana legalization world that employers may want to keep an eye on as they move forward in 2021.
Over 1,500 COVID-19–related employment lawsuits were filed in the United States in 2020. Ogletree Deakins’ Interactive COVID-19 Litigation Tracker highlights the industries impacted, locations, and types of claims in these matters.
The New York State Department of Labor (NYSDOL) issued guidance on January 20, 2021, clarifying certain aspects of New York’s COVID-19–related quarantine leave law and expanding certain benefits under the law. Parts of the guidance came as a surprise to some employers, as they appear to impose additional obligations on employers to pay employees if they require the employees to remain out of work due to potential COVID-19 exposure.
On December 10, 2020, the New York City Council amended New York City’s Fair Chance Act (FCA), also known as the “ban the box” law. The recently enacted amendments will take effect on July 29, 2021.
On January 5, 2021, New York City Mayor Bill de Blasio signed legislation that effectively ends at-will employment for fast food employees in New York City. The new law takes effect on July 4, 2021, and would make New York City the nation’s first jurisdiction to create job protections for a particular industry. However, at least some portions of the new law may be ripe to challenge on federal preemption and other grounds.
Several states’ minimum wage rates will increase in 2021. The following chart lists the state (and certain major locality) minimum wage increases for 2021—and future years, if available—along with the related changes in the maximum tip credit and minimum cash wage for tipped employees.
Earlier this year, New York State enacted a statewide paid sick leave (PSL) law, which took effect on September 30, 2020. Entitlement to use leave under the law begins on January 1, 2021, and, the New York State Department of Labor (NYSDOL) has published PSL guidance and answers to frequently asked questions (FAQs). In order to provide greater clarity concerning the requirements of the law, on December 9, 2020, the NYSDOL published proposed regulations.
On November 1, 2020, the United States District Court for the Eastern District of New York in Palmer et al. v. Amazon.com Inc. et al., No. 20-cv-2468, 2020 WL 6388599, dismissed a lawsuit against Amazon alleging failures to comply with New York law and “New York Forward” minimum requirements for businesses.
Elections in the United States are scheduled for Tuesday, November 3, 2020. Not only will the office of president of the United States be contested, but all 435 seats in the U.S. House of Representatives and 35 of the 100 seats in the U.S. Senate are up for grabs. At the state level, elections will be held for the governorships of 11 U.S. states and 2 U.S. territories.
On April 3, 2020, New York State enacted a statewide paid sick leave (PSL) law impacting all private employers in New York. The law requires employers to provide up to 40 or 56 hours of annual sick leave (depending on their size and net income).
The year 2020 has certainly come with its share of new challenges. Now, with the presidential election less than a month away, heightened tensions around the country, new remote work environments, videoconferences offering a window into employees’ personal lives, face masks with political slogans, and so much more, New York employers might want to start thinking through what employee political conduct they can and can’t regulate this election season.
New York City Mayor Bill de Blasio signed into law New York City Council Int. No. 2032-A on September 28, 2020, after the city council passed the bill a few days earlier. The legislation, which took effect on September 30, 2020, amends the New York City Earned Safe and Sick Time Act (ESSTA) and generally aligns the ESSTA with the New York State Sick Leave Law (New York Labor Law § 196-b) (NYSSLL), the accrual provisions of which also took effect on September 30, 2020.
We previously reported on COVID-19–related employment lawsuits that we tracked from late March 2020 through early May 2020. Since then, the number of lawsuits has steadily risen as employers have resumed operations after shelter-in-place or stay-at-home orders were lifted and students returned to school in virtual or hybrid environments. To track this litigation and to identify trends, we developed an Interactive COVID-19 Litigation Tracker that details where COVID-19–related litigation is taking place by state, the industries affected, and the types of claims asserted against employers and educational institutions.
On September 8, 2020, the U.S. District Court for the Southern District of New York vacated the U.S. Department of Labor’s (DOL) final joint-employer rule, which limited when multiple businesses involved in an employment relationship could be liable for violations of the Fair Labor Standards Act (FLSA).