Posted on August 2, 2022
New York and several of its jurisdictions have enacted and updated employer requirements on wage theft and transparency, sexual harassment prevention, and employers' use of automated tools in employment decisions. Click on each of the updates below to learn more.
New York Governor Kathy Hochul has announced via a press release the progress and added efforts by the Wage Theft Task Force to combat employer wage theft in New York.
The Wage Theft Task Force is a joint effort between the state’s Department of Labor (DOL), attorney general and district attorneys.
The task force’s efforts began in the construction industry, covering wage theft, failure to pay prevailing wages in public works contracts, fraud and safety hazards. Since then, the task force’s mandate was expanded to other industries in New York, such as restaurant enterprises, focusing on wage theft, misclassification of employees and overtime pay.
The press release stated that the Wage Theft Task Force has secured felony convictions and agreements from more than a dozen businesses and 265 individuals to pay $3 million in wage restitution and contributions owed to the state since the start of the COVID-19 pandemic.
Note: See the press release for information on civil agreements and felony convictions.
The press release also announced the following enhancements to the New York wage theft prevention efforts:
New York employers may wish to consult with appropriate legal counsel and other advisors to conduct a review of relevant practices, and they should ensure that:
New York City has enacted legislation (Int. No. 1894-A) that amends the New York City Human Rights Law and regulates the use of automated tools in certain employment decisions. The law takes effect on January 1, 2023.
Updated July 2022: The city has issued guidance that contains the schedule of penalties employers may face if found in violation of the law, and lists circumstances under which a separate, daily violation would occur:
The legislation regulates New York City employers and employment agencies' use of artificial intelligence, data analytics, machine learning, or statistical modeling (automated employment decision tools) that are used to substantially assist or replace discretionary decision making for employment decisions.
The law generally applies to computerized tools or software programs based on algorithms to identify, select, evaluate or recruit candidates, such as:
Note: The law does not include a tool that does not automate, support, substantially assist or replace discretionary decision-making processes and that does not materially impact people, including, but not limited to, a junk email filter, firewall, antivirus software, calculator, spreadsheet, database, data set, or other compilation of data. The law is also silent on tools that identify employees for termination or reductions in force.
Under the law, employers must notify a New York City resident that applied for a position (at least 10 business days before using the tool) if their application will be subject to an automated tool as part of the decision-making process and what specific job qualifications and characteristics the tool will use to assess workers and candidates. The notice must also inform candidates of their right to request an alternative selection process or accommodation.
To use an automated employment decision tool, covered employers must retain an independent auditor to assess whether the tool's selection criteria result in disparate impact based on race, ethnicity, or sex on an annual basis. They must also publish a summary of the results and the distribution date of the tool on their website.
The law also requires covered employers to retain information about the source and type of data collected for the tool and the businesses' data retention policy. Employers must disclose this information on their website or provide it to an applicant within 30 days of a written request, unless prohibited by law.
Employers that fail to comply may face fines. See the schedule of penalties for further details.
If considering the use of automated employment decision tools, New York City employers should:
Covered employers should also anticipate further regulations from the city that clarify their obligations under the law.
New York has enacted legislation (Assembly Bill 2035B and Senate Bill 5870) that will require employers to provide employees with information on the new sexual harassment prevention hotline and classify the release of certain employee information as retaliation.
Updated July 2022: New York Governor Kathy Hochul has announced the launch of the new confidential hotline (1-800-HARASS-3 (1-800-427-2773)), available for issues involving workplace sexual harassment.
Under Assembly Bill 2035B, the New York State Division of Human Rights will create a hotline staffed by experienced, pro bono attorneys to assist callers with their workplace sexual harassment complaints and inform them of their rights under the law.
The Division will also work with the Department of Labor to include information about the hotline in the materials employers must post or provide to their employees on sexual harassment. Employers should anticipate further materials from the Department of Labor.
Senate Bill 5870 has expanded the definition of retaliation to include disclosing an employee’s personnel files because they have filed a complaint, participated in a proceeding, or opposed any practices that are in violation of the New York Human Rights Law.
Note: An employer may disclose personnel files when they must comply with an investigation or an administrative or judicial proceeding.
New York employers should review their policies, procedures and supervisor trainings to ensure compliance with Assembly Bill 2035B and Senate Bill 5870. Employers should also anticipate updated sexual harassment training materials.
Westchester County and Ithaca, New York have joined New York City in requiring employers to provide greater wage transparency.
The New York City Council enacted a pay transparency law, which requires New York City employers to include the minimum and maximum starting salary for advertised jobs, promotions or transfer opportunities beginning November 1, 2022.
Westchester County and Ithaca, New York have joined New York City in enacting wage transparency laws:
Westchester County employers will be prohibited from advertising a job, promotion or transfer opportunity without also including the minimum and maximum salary for the job, promotion, or transfer in the job posting or advertisement beginning November 6, 2022.
Under the amended Human Rights Law:
The amendment also specifically excludes general requests for applications, if the requests only indicate that an employer is accepting applications without reference to a particular role, such as a help wanted sign.
Ithaca employers with four or more employees must disclose the minimum and maximum hourly or salary compensation for an employment opportunity, such as a job, promotion, or transfer opportunity, in job postings, beginning September 1, 2022.
The amended Human Rights Ordinance will make it an unlawful discriminatory practice for an employment agency or employer (or their employees or agents) to advertise an employment opportunity without stating the minimum and maximum hourly or salary compensation that the employer in good faith believes at the time of posting it would pay for the advertised job, promotion or transfer opportunity..
Note: The Ordinance does not contain guidance on geographic or jurisdictional scope.
Employers should:
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