New York Employment Law Roundup: Recent Changes That Employers Must Know

Mandatory Sexual Harassment Policy Requirements

Since October 2018 New York has mandated employers to adopt written sexual harassment policies and provide yearly sexual harassment training.  The State developed a Sexual Harassment Model Policy and model harassment training materials that employers can use, or employers can develop their own policy and training materials so long as they meet the State’s minimum standards for compliance.

In April 2023 the New York Department of Labor updated its Sexual Harassment Model Policy (the “Model Policy”), model harassment complaint form, and model training materials, which can be found here.  The updated Model Policy

• increases the focus on workplace gender discrimination, with emphasis on harassment based on sex stereotypes, gender identity, gender expression, and sexual orientation, and provides additional examples of unlawful conduct;
• addresses remote workers, making it clear that these employees can be subject to sexual harassment via electronic communications. Whereas these employees may not ever physically report to the workplace, employers must email remote workers a copy of the sexual harassment and post it on the employer’s shared network;
• clarifies that while the “reasonable person” standard applies when determining whether the conduct constitutes sexual harassment, the intent to the harasser is not a defense. Rather, “The impact of the behavior on a person is what counts”;
• specifies that harassment need not be “severe and pervasive” and encourages employees to report even minor incidents;
• provides that harassment investigations will be kept confidential “to the extent possible,” not strictly confidential as provided in the prior model policy;
• specifies that employees need not complete the complaint form, but may make verbal and email complaints;
• omits the former model policy’s requirement that investigations be completed within 30 days
• includes a new section addressing bystander intervention
• contains more detailed examples of retaliation and bystander intervention,
• contains an overview of legal rights and remedies for victims of unlawful sexual harassment and includes contact information for reporting incidents of harassment to the New York State Division of Human Rights, the New York Commission on Human Rights and the US Equal Employment Opportunity Commission.

Employers should review their current policies and consult with employment counsel to ensure that their policies comport with these newly expanded requirements.

The Growing “Family” Under the New York Paid Family Leave Law

The definition of “family members” for whom eligible workers can take paid leave time under the New York Paid Family Leave law has been expanded to include siblings with serious health conditions. “Siblings” include biological, adopted, stepsiblings, and half-siblings. These family members do not have to live in New York or the United States to qualify under the Act.

Marijuana Testing in the Workplace

Since March of 2021 New York employers are prohibited from drug testing their employees for marijuana. However, an employer may take action if an employee “manifests specific articulable symptoms of cannabis impairment” that interfere with the employee’s ability to perform tasks or with the employer’s obligation to provide a healthy and safe workplace. While there is no complete list of what constitutes symptoms of impairment, the symptoms must be objective and observable indications of a decrease in an employee’s performance. However, the New York Department of Labor guidance states that the odor of marijuana, without more, is not sufficient.

Employers must proceed with caution even if there are observable symptoms of impairment because some symptoms may be an indication that an employee has a protected disability, or is taking medication to treat a disability, that was previously  unknown to the employer. Drug testing policies should require employees who take over-the-counter medications, including medical marijuana, for a medical condition to inform the employer if they believe the medication will impair their job performance, personal safety or the safety of others.

 Expansion of Lactation Rights

In 2007 New York enacted the Nursing Mothers in the Workplace Act requiring employers to provide reasonable unpaid break time of at least 20 minutes (or permit them to use rest periods or meal breaks) for employees to express breast milk for up to three years following childbirth. Employers must also provide a room, other than a bathroom or toilet stall, where milk can be expressed in private.

In December 2022 the law was amended to impose additional requirements for lactation rooms, which now must:

• Be close to the employee’s work area (within walking distance and the distance must not significantly increase the employee’s needed break time)
• Provide good natural or artificial lighting
• Be shielded from view and free from intrusion
• Have accessible, clean running water nearby
• Have an electrical outlet
• Include a chair
• Include a desk, small table, counter, or other flat surface

Employees wanting to express breast milk must submit a written request to their direct supervisor (or other designee) in advance to provide employers sufficient time  to comply with the lactation room requirements.

Once a location is designated as a lactation space, the employer must notify all employees in writing either by email or by a printed memo.  Although the designated lactation room may be used for other purposes, employers must prioritize its use for lactation when an employee needs to express milk.  Employers must also provide the breast milk expression policy in writing to all employees upon hiring and every year thereafter, and to employees returning to work after the birth of a child.

Amendment to the New York City Human Rights Law to Prohibit Height and Weight Discrimination

The New York City Human Rights Law was recently amended to prohibit discrimination based on a person’s height or weight in employment, housing, and public accommodations. However, an employer may consider an individual’s height or weight when required by federal, state, or local laws or regulations. Additionally, an employer will have an affirmative defense if an individual’s height or weight prevents the individual from performing the essential duties of the job and there is no alternative action that the employer could reasonably take that would allow the person to perform the essential functions of the job. It is also an affirmative defense if consideration of height or weight is reasonably necessary for the execution of the normal operations of the covered entity. This new law will become effective November 22, 2023.

New Wage Transparency Requirements

Effective September 17, 2023, most New York employers must include salary or wage ranges in any advertisement (including internal postings) for job, promotion, or transfer opportunities.  Employers must also include a job description, if one exists.

The law applies to businesses with 4 or more employees physically working in the State, as well as those with 4 or more out-of-state employees who report into an office or supervisor in New York.  Employers face potential civil penalty for violations of up to $1,000 for a first violation, $2,000 for a second violation, and $3,000 for a third or subsequent violation. With some exceptions, the law tracks requirements already imposed upon New York City employers.

New York’s Imminent Ban on Non-Compete Agreements

On June 20, 2023 New York lawmakers passed a blanket ban on all non-compete agreements, thus joining the growing federal and state efforts to curb their use.  If signed by the Governor as expected, the bill will take effect 30 days after it is signed.

The bill prohibits all employers, regardless of industry, from seeking, requiring, demanding or accepting a non-compete agreement from any person who performs services on such terms that the individual is “economically dependent” on the employer.  Thus, unlike other states’ laws that include a carve out for highly compensated employees, the New York law extends to all workers across the board, including those hired as independent contractors.

The bill defines a “non-compete agreement” as any agreement that prohibits or restricts a worker from obtaining employment after termination of employment.   Although the bill specifies that it does not prohibit agreements barring solicitation of clients that “the covered individual learned about during employment, provided that such agreements do not otherwise restrict competition in violation of this section,” broader non-solicitation agreements appear to be prohibited.

Another provision of the bill appears to go further, declaring that “[e]very contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” It is unclear whether this provision or other aspects of the bill would extend to other contractual arrangements, such as compensated garden leaves or non-competes by former shareholders as part of the sale of a business.

Despite its extensive reach, the final sentence of the bill states that it will apply to contracts entered into or modified after the effective date, signaling that pre-existing non-competes will not be affected.

Ban on Consideration of Sealed Convictions

Under the recently passed Clean Slate Act, New York employers are prohibited from making inquiry into or considering automatically sealed conviction records when making employment decisions. Once the bill takes effect, criminal conviction records under New York’s penal law will be automatically sealed as follows:

• Misdemeanors will be sealed three years form the individuals release from incarceration or the imposition of the sentence if no jail time is served
• Felonies will be sealed eight years from release from prison. More serious Class A-1 felonies and convictions requiring registration as a sex offender are not eligible for sealing.

The law only seals convictions under the New York penal law and dos not extend to criminal convictions under federal or other states’ criminal laws.  The Clean Slate Act will go into effect one year after its anticipated signing by Governor Hochul.