Be aware of recent changes in the law — including pay transparency, which starts in September — to avoid being liable for damages or penalties
By Steven E. Abraham
Business owners in New York need to keep abreast of legal changes, in particular, changes in the area of employment law. Failure to do so could result in being liable for damages or penalties.
Recently, both the federal and New York state governments have passed changes in the laws that significantly expand protections for employees. Employers need to be aware of these changes to avoid the risks.
Federal Law
Congress has passed two new laws that will impact all businesses in the near future.
• Pregnant Workers Fairness Act (PWFA)
The PWFA applies to employers with at least 15 employees and becomes effective on June 27. The PWFA includes the obligation to provide reasonable accommodations to pregnant employees, as long as those accommodations do not impose an undue hardship. Under the PWFA, employers will be required to provide reasonable accommodations to employees and applicants with known temporary limitations on their ability to perform the essential functions of their jobs based on a physical or mental condition related to pregnancy, childbirth and related medical conditions. The law provides that employees or their representative can make the employer aware of the employees’ limitations. It also provides that an employer cannot require an employee to take a paid or unpaid leave of absence if another reasonable accommodation can be provided.
While both federal and state law already made it illegal for businesses to discriminate against employees based on pregnancy, the PWFA goes further, because it provides that employers have an affirmative duty to accommodate pregnancy.
• PUMP for Nursing Mothers Act
The PUMP Act, which took effect in December 2022, expands existing employer obligations under the Fair Labor Standards Act and requires them to provide employees with reasonable break time to express breast milk for the employee’s nursing child for one year after the child’s birth. Employers must provide a place for employees to express milk shielded from view and intrusion from coworkers and the public (other than a bathroom).
The law covers all employees, not just nonexempt workers under the FLSA. In other words, even executives, managers and supervisors, are protected. The break time may be unpaid, however. Employers should ensure that non-exempt nursing employees are paid if they express breast milk during an otherwise paid break period or if they are not completely relieved of duty for the entire break period. Exempt employees should be paid their full weekly salary as required by federal, state and local law, regardless of whether they take breaks to express breast milk.
The law requires employees to provide notice of an alleged violation to the employer and must give the employer a 10-day window to cure the violation period before filing a lawsuit. Employers with fewer than 50 employees can still rely on the small employer exemption, if compliance with the law would cause undue hardship because of significant difficulty or expense.
New York Laws
• Pay Transparency in New York
New York state has passed a pay transparency law that goes into effect in September. The new law will require employers to disclose a good-faith salary range for any position that will be performed in New York. Further, if the employer has a job description for the role, that job description must also be included with the posting under the state law. For commission-based positions, the New York state law requires “a general statement that compensation shall be based on commission” on the job posting. Finally, the New York state law includes a requirement for employers to maintain “necessary records” of the history of compensation ranges for each position and job descriptions, to the extent they exist.
• Amendments to the New York state Human Rights Law
The New York state human rights law has additional employee protections based upon 2022 amendments. First, in March 2022, New York added a specific category of unlawful “retaliation” for the disclosure of an employee’s personnel file. Second, in July 2022, New York announced a confidential hotline for people experiencing sexual harassment in the workplace to connect with pro bono attorneys on sexual harassment issues or to submit a complaint. Finally, on Dec. 23, 2022, the New York state human rights law was amended to cover citizenship and immigration status.
It also should be noted that the New York state department of labor and the New York state division of human rights jointly issued a revised sexual harassment prevention model policy on April 18, 2023. The new policy places a strong emphasis on gender identity. There is a new section on bystander intervention. The release of this new policy included new trading that you use designed to meet the state’s annual training requirement.
• Electronic Versions of Workplace Postings
New York state now requires employers to make all notices, posters and documents that are required to be posted in the workplace available to employees electronically. The law also states that employers provide notice to employees that these documents are available electronically as well as in print.
• New Leave Protections
The New York Paid Family Leave Law was amended effective Jan. 1, 2023, to specify that a sibling is a family member for which an employee can take protected family leave.
• Additional Lactation Accommodation Requirements
Similar to the PUMP Act discussed above, starting on June 7, 2023, employers throughout New York state will need to ensure that they provide a designated lactation space that has a chair, table, access to nearby running water, electricity and that is (1) in close proximity to the work area; (2) well lit; (3) shielded from view; (4) free from intrusion from other persons in the workplace or the public.
• Protected Absences
Employers with absence control policies who discipline employees for taking protected leave under any federal, state or local law will be subject to penalties. This new law targets employer policies that attempt to control employee absences by assessing points or “demerits” or docking time from a leave bank when an employee is absent, regardless of whether or not the absence is permissible under applicable law. The amendment prohibits employers in New York from taking these actions when employees take a legally protected absence. Though the law does not prohibit attendance policies that include a penalty point system, legally protected absences cannot be used to deduct from these point systems.
Employers are prohibited from retaliating or discriminating against any employee that makes a complaint that the employer violated the law and violations can come with sizable penalties. In addition to enforcement by the New York state department of labor, NYLL Section 215 provides a private cause of action for current and former employees to recover monetary damages from employers who have violated Section 215. Monetary damages include back pay, liquidated damages and attorneys’ fees in addition to civil penalties that can be issued by NYSDOL of up to $10,000 for the first violation and $20,000 for repeat violations.
In sum, employee rights and employee protections have been expanded or will be extended significantly shortly. It is important for employers to be aware of these changes to protect themselves from liability or penalties. It would be wise, however, for businesses to consult with an attorney in order to protect themselves to the greatest extent.
