Caveat Employers: New Laws Going into Effect in 2020 Affect Every Employer

A host of new employment obligations ranging from sexual harassment prevention training to stricter data breach notification requirements will go into effect in early 2020 and will be a shock to some employers who were previously exempt.

Mandatory Sexual Harassment Prevention Training

NYS Human Rights Law Made to Apply to ALL Employers

One of the biggest overhauls of 2019 involved sweeping changes to New York State Human Rights Law [NYSHRL] expanding harassment and discrimination protections.

Among employers’ new obligations was to give workers sexual harassment prevention training by this past October or face fines if you are caught or a complaint is made. That obligation continues and employers are required to do that training annually.

Also as a result of changes to NYSHRL, effective Feb. 8, the Human Rights Law will apply to employers of all sizes. Previously, except with respect to sexual harassment, the law covered only employers with four or more employees. So the minute your business takes on a single employee you must provide the training. The law was also changed to protect non-employee service providers, such as independent contractors, consultants and vendors, from all forms of unlawful discrimination and harassment based on any protected characteristic under the NYSHRL.

The NYSHRL covers protected characteristics including sex, race, color, creed, religion, age, sexual orientation and disability. This means employees will be able to file a charge of discrimination with the state’s Division of Human Rights (NYSDHR) even with the smallest of employers. Most small businesses are unprepared and ill-equipped to handle the new requirements. A number of websites have already popped up offering the training online at cost ranging from $11.95 to $100.00 per employee. The State also has link that provides it for free: https://www.getimpactly.com/resources/free-new-york-harassment-prevention-training/

City Bans Marijuana Testing of Employees

Effective May 10, 2020, New York City’s Fair Chance Act will be amended to prohibit employers from requiring applicants to submit to testing for the presence of marijuana as a condition of employment. The law, however, contains exceptions for those who apply to work in areas involving public safety, such as law enforcement personnel and construction workers.

Change to Non Disclosure Agreements

In addition, as of Jan. 1 under changes to NYSHRL, any agreement with an employee that prevents the disclosure of factual information related to a future claim of discrimination is void and unenforceable unless the employee is specifically informed that despite the nondisclosure agreement, the employee is not prohibited from speaking with law enforcement, the Equal Employment Opportunity Commission, the NYSDHR, a local human rights agency or an attorney retained by the employee. Law firms and employers alike would be wise to add this language right now to their form non-disclosure or settlement agreements.

Statute of Limitations Increased to Three Years

Furthermore, effective Aug. 12, 2020, the statute of limitations for filing a sexual harassment claim with the NYSDHR is extended from one to three years. This widening of the statue of limitations will make it easier for employees to bring up several separate instances in one claim. That is particularly important because the State also changed the law to match the law in the City of New York where the Human Rights Law in 2009 was amended remove the requirement that workplace harassment be “serious or pervasive” (the Federal standard). Now a single incident that is discriminatory or harassing can form the basis of a claim.

Outside of Human Rights Law changes, some other notable changes include:

New York State and New York City Minimum Wage Increases

As of December 31, 2019, the minimum wage for New York employers is:

  • $15 per hour for New York City employers
  • $13 per hour for Westchester, Nassau and Suffolk County employers
  • $11.80 for employers in the remainder of New York State

Minimum Exempt Salary Increase

New York has increased the minimum salary an employee must be paid in order to qualify for the administrative or executive exemption under state wage and hour law. Exempt status under both exemptions is based on (1) the payment of a minimum exempt salary; and (2) whether the employee meets the duties test of the applicable exemption. While the duties test for these exemptions remains unchanged, effective December 31, 2019, the minimum exempt salary is:

  • $1,125.00 per week ($58,500 annually) for New York City employers
  • $975.00 per week ($50,700 annually) for Westchester, Nassau and Suffolk County employers
  • $885.00 per week ($48,750 annually) for employers in the remainder of New York State

Effective January 1, 2020, the minimum exempt salary under the federal Fair Labor Standards Act increased to $684 per week ($35,568 annually) for the executive, administrative and professional exemptions. Because New York’s salary threshold for the administrative and executive exemptions is greater than the federal threshold, New York employers must comply with the higher state threshold for those exemptions.

However, New York’s minimum salary threshold applies only to the administrative and executive exemptions, not the professional exemption. Accordingly, New York employers who rely upon the professional exemption must only comply with the federal salary threshold.

Paid Family Leave Changes

•    Effective Jan. 1, employees taking Paid Family Leave will receive 60% of their average weekly wage up to a cap of 60% of the current statewide average weekly wage of $1,401.17, so the maximum weekly benefit for 2020 will be $840.70. The benefits are funded by employee contributions collected via payroll deductions. In 2020, the contribution is 0.270% of employees’ gross wages each pay period, up to a max of $196.72 for the year.

Cannot Use Salary History in Hiring    

On Jan. 6, a statewide ban on salary history inquiries takes effect. Employers and anyone connecting applicants with employers are forbidden from asking job applicants about their wage or salary histories as a condition of consideration for employment or promotion.

Additionally, employers will be prohibited from seeking an applicant or current employee’s salary or wage history from a current employee, or their current or former employer. Salary history inquiries have been prohibited in New York City since October 31, 2017, and are similarly prohibited in Suffolk and Westchester Counties.

Revised Requirement for Employee Handbooks re: Abortion

•    By Jan. 7, employee handbooks must include a notice of employees’ rights and remedies under the a 2019 law that prohibits employment discrimination based on an employee or dependent’s reproductive health decision-making (ie., abortion, etc.).

Natural Hair is now a Protected Characteristic

  • The City of New York also made it illegal to discriminate based on a person’s hair or hairstyle.

Data Breach Safeguards

Effective March 21, as part of New York’s SHIELD Act, employers must adopt more stringent data security safeguards to protect employee data. More expansive data breach notification requirements already went into effect in 2019. 

Conclusion

I know I speak for many of my small business owner clients when I say that these new laws will come as a shock. It’s important that if you have even a single employee, you get educated on all the new rules and regulations and take steps to come into compliance.

Follow me on Twitter @oscarmichelen

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