Barbara J. Harris © Matt Greenslade/photo-nyc.com

New Yorkers and Californians vie for accolades about almost anything (think "best bagels" vs. "best weather"). Historically, California was unrivalled as the most employee-friendly state (and therefore the most challenging for employers). But given the political divide at the federal level, there has been a proliferation of state and local lawmaking aimed at increasing workplace protections, with New York at the forefront of many recent progressive developments. So is New York poised to become the next California? Or are we already there?

In 2019, sweeping reforms to the New York Human Rights Law (NYHRL) made it one of the broadest anti-discrimination laws in the country. As amended, the law applies to all employers (effective February 2020), and now protects both independent contractors and interns against all forms of workplace discrimination and harassment (not just based on sex). New York also requires all employers, regardless of size, to conduct annual sexual harassment prevention training for all their employees. Notably, California's Fair Employment Housing Act (FEHA), even as recently amended, generally only applies to employers with five or more employees, does not generally cover independent contractors, and only requires harassment training every two years.

New York has also expanded its protected classes. In June 2019, the state amended the NYSHRL to prohibit discrimination based on protective hairstyles associated with race, such as braids and twists, following New York City's lead earlier that year. Ironically, though, California passed its CROWN Act adding hairstyle protections first, while the New York law was awaiting Governor Cuomo's signature. New York also added protections against discrimination based on employees' reproductive health care decisions, following similar actions by New York City (though California has had these protections since 2017).

Beyond harassment and discrimination, New York's minimum wage and minimum salary threshold for overtime exemptions are among the highest in the country and all exceed the federal minimums, even as increased under the DOL's 2019 Final Rule. New York has also broadened its pay equity law to require equal pay based on all protected classes (not just sex) and joined the growing number of jurisdictions (including New York City and California) that ban salary history inquiries in recruitment and compensation decisions (effective Jan. 6, 2020).

Both New York and California passed #MeToo-inspired laws imposing restrictions on confidentiality provisions in certain settlement agreements, and have attempted to restrict mandatory arbitration agreements as a condition of employment (though these laws are subject to legal challenges). And while California recently codified one of the most restrictive independent contractor classification tests (AB-5), the California development reportedly got Governor Cuomo's "competitive juices flowing," stating that he did not "want to lag California in anything …" (Crain's NY Business, Sept. 10, 2019).

California may still lay claim to some statewide protections and proscriptions that have not yet migrated east. But with pending proposals regarding unionizing rights for gig workers, non-compete restrictions, and new paid sick leave laws, New York may finally surpass California for top-billing as the most pro-employee state. Stay tuned in 2020!

Barbara Harris is senior legal editor, labor & employment service, at Practical Law.