The New York State Legislature and New York City Commission were busy in 2019 enacting a spate of new employment laws. We take a look back at some of the significant changes that have recently been made to employers' obligations and a look forward at those going into effect in 2020. Employers would be wise to add an employment law compliance review to their checklist of action items for the new year.

Summary of Legal Changes

Anti-Discrimination and Anti-Harassment. New York state and City laws against discrimination and harassment have expanded to include more employers and protect more workers. Small employers should be aware that the New York State Human Rights Law will apply to them shortly. Beginning Feb. 8, 2020, all employers in the state will be subject to the law, regardless of the number of persons in their employ. Executive Law §292(5). Employers are subject to the New York City Human Rights Law if they had four or more workers at any time during the preceding 12 months, including employees, independent contractors, and family members. NYC Admin. Code §8-102. Certain non-employees such as independent contractors and freelancers are now protected against discrimination and harassment. Executive Law §296-d; NYC Admin. Code §8-107(23).

In addition, the New York State Human Rights Law departs from federal standards in significant respects and is now more in line with City law. Harassment no longer needs to be severe or pervasive to be actionable. The burden is on the employer to show an affirmative defense to liability, viz., that "the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences." Executive Law §296(1)(h). Employees need not make a complaint to the employer to establish harassment, nor are they required to identify a comparator outside the protected class who has been treated more favorably to establish discrimination. Id. Employers are thus obliged to maintain a work environment and make employment decisions consistent with these new standards.

Additional categories and classes of employees are protected from discrimination and harassment. These include: actual or perceived gender identity or expression (Executive Law §§291(1), 292(35), 296(1)(a)-(d)); sexual or reproductive health decisions (Labor Law §203-e; NYC Admin. Code §§8-102, 8‑107(1)-(2)); religious attire, clothing and facial hair (Executive Law §296(10)); and traits that are historically associated with racial identities such as hair texture or hairstyles like braids, locks, and twists (Executive Law §292(37)-(38)).

State law also restricts confidentiality with respect to all discrimination and harassment claims, not just sexual harassment claims. Settlement agreements may not include a nondisclosure provision unless it is the complainant's preference. General Obligations Law §5-336(1). Employment agreements entered into on or after Jan. 1, 2020 may not include a nondisclosure provision affecting future discrimination claims either "unless such provision notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement, the equal employment opportunity commission, the state division of human rights, a local commission on human rights, or an attorney retained by the employee or potential employee." General Obligations Law §5-336(2).

Employers must take specific actions to prevent sexual harassment. They are required to have a written policy against sexual harassment and conduct interactive sexual harassment prevention training annually. Under state law, the first training should have been completed by Oct. 9, 2019. Labor Law §201-g. Employers had until Dec. 31, 2019 under City law to undertake initial training. NYC Admin. Code §8-107(30). Furthermore, state law has been amended to require that employers provide their policies to employees upon hiring and at the training session. Labor Law §201-g.

Leave and Accommodation. There are added and enhanced employee entitlements regarding leaves and accommodations. Under state law, employees are entitled to three hours of paid leave to vote in elections even if their schedule allows for sufficient time to vote before or after work. Election Law §3-110. Victims of domestic violence must be provided with reasonable accommodations, including reasonable time off for medical treatment, counseling, or to obtain other related services or assistance. Executive Law §§292(34), 296(22). Paid Family Leave has increased to 10 weeks at 60% of salary, up to a maximum of $840.70 per week. 12 NYCRR 358-3.1.

Employers in New York City are required to have a written lactation policy and accommodate employees who wish to express breast milk by providing a reasonable time and space to do so. NYC Admin. Code §§8-102, 8-107(22).

Pay Equity. State law has been amended with respect to pay equity. The amendments extend protections against discriminatory pay differentials to all protected classes, not merely sex, and lower an employee's burden of proof for a claim of pay discrimination. Labor Law §§194(1)-(2), 197. Employers also may not rely on, or inquire about, in writing or otherwise, a job applicant's salary history in making hiring or salary determinations. Labor Law §194-a.

Wage and Hour. The hourly minimum wage has increased for 2020. For small employers in New York City (those with 10 or fewer employees), it is $15.00, which now matches the rate for large employers. 12 NYCRR 142. In Long Island and Westchester, the minimum wage is $13.00. Id. It is $11.80 elsewhere in the state. Id. For fast food workers, the minimum wage in the City remains at $15.00 but has increased to $13.75 in the remainder of the state. 12 NYCRR 146.

For most tipped workers, the maximum tip credit has increased as well. For example, in the food service industry, the tip credit is $5.00 per hour for small employers in New York City, which matches the tip credit for large employers. It is $4.35 in Long Island and Westchester County, and $3.95 everywhere else in the state. 12 NYCRR 146.

The minimum salary thresholds for executive and administrative overtime exemptions also have increased. For small employers in New York City, the threshold is $1,125 per week ($58,500 annually), which is the same as for large employers. In Long Island and Westchester County, the threshold is $975 per week ($50,700 annually). In the remainder of the state, it is $885 per week ($46,020 annually). 12 NYCRR 142.

The state law prohibition against unlawful retaliation for complaining of wage violations has been amended to include reporting, or threatening to report, the suspected immigration or citizenship status of an employee or an employee's family to a governmental agency. Labor Law §215.

Data Protection. Under the state's General Business Law, companies doing business in New York, such as employers, are required to notify New York residents if their private information has been compromised. The Stop Hacks and Improve Electronic Data Security (SHIELD) Act amended this law to provide additional safeguards for private information, modify notification requirements for security breaches, and expand the definition of "private information" to include biometric information, usernames or email addresses with a password, and other categories of information. Also, all businesses with private information of New York residents are now required to comply with the law, regardless of the company's location. General Business Law §§899-aa, 899-bb.

Drug Testing. Beginning May 10, 2020, employers in New York City are prohibited from testing applicants and employees for THC, the active ingredient in marijuana, with certain exceptions for safety-sensitive positions. NYC Admin. Code §8-107(31).

Practical Guidance

The new laws are nuanced, and employers should examine them closely to ensure compliance. Some require that specific written polices and notices be provided to employees. For example, employee handbooks must include a notice of employee rights and remedies concerning reproductive health decisions. Employers must post a notice of voting leave rights ten days before all elections, including the upcoming presidential primaries and general election. Employers in New York City must provide employees with a written lactation policy.

Existing policies should be reviewed and updated as necessary. For example, all newly-protected categories should be included in anti-discrimination policies. Grooming policies, such as those related to religious attire and hairstyles that are historically associated with racial identities, must meet the new standards.

Employers should also be prepared to undertake required practices, including annual sexual harassment training. A single annual training can satisfy an employer's obligations under both state and City law as long as all required topics are covered. Employers with private information of New York residents must also comply with the SHIELD Act's requirement to develop and implement reasonable safeguards to protect that information by March 21, 2020.

Finally, employers should keep abreast of changes to their legal obligations that will inevitably occur in the future.

Frances Kulka Browne is a partner in the law firm of Brody & Browne and an adjunct professor at Fordham Law School. Erika Ghaly is an associate at the firm.