Hello friends! Feeling a little down because the holidays appear too far in the rear-view mirror (or not far enough depending on how we feel about “family” – we don’t judge here)? We hear ya, but it’s time to ring in a new year and a new era of employment laws! Okay, maybe you’re not as excited as we are, but seeing as we’re wrapping up the first month of 2023, we figured we’d remind you of some brand-new laws, laws to come, and laws not yet passed in New York, New Jersey, and Pennsylvania. First stop: New York . . .
New York State Passes Wage Transparency Law
Following in New York City’s and Westchester’s footsteps, Governor Hochul signed a statewide wage transparency law late last month. Effective September 17, 2023, the new law requires that employers with 4 or more employees list salary ranges in advertisements or postings for job opportunities and promotions. The law expressly covers all job postings for work that can be done within the State of New York, and requires that job postings also include a job description. Employers who violate the law are subject to civil penalties by the Commissioner of Labor up to $1,000 for a first violation, $2,000 for a second violation, and $3,000 for any subsequent violations.
New York Paid Family Leave Law Now Includes Siblings
New York’s Paid Family Leave Law provides employees with up to 12 weeks of paid leave to bond with a new child, care for an ailing family member, or assist a family member who is in active military service. Effective January 1, 2023, the definition of “family member” now includes siblings. Before this change, “family member” only included spouses/partners, children, stepchildren, parents, stepparents, parents-in-law, grandparents, and grandchildren. Employees who take paid family leave are entitled to 67% of their average weekly wage, up to a cap of 67% of the State’s average weekly wage (for 2022, the average weekly wage was $1,594.57). Bet you’re questioning why you gifted your sibling a novelty coffee mug (or even worse – socks) now, aren’t you?
Electronic Workplace Postings
Acknowledging that this “work from home” thing might be here to stay, New York passed a new law requiring Empire State employers to make certain workplace posters and notices electronically available. As you all (hopefully) know, businesses are required to post certain employment law notices in conspicuous areas. Examples include a minimum wage poster, and notices regarding sexual harassment laws and prior convictions. Under the new law, all posters that are required to be displayed (not just employment law posters) must also be sent electronically. This law went into effect immediately, so if you just clicked those links and were surprised by what you saw, we should probably schedule a time to speak . . .
New York’s Lawful Absence Law
A quick reminder on New York State’s recent update to Labor Law Section 215, which prohibits employers from disciplining, threatening, discriminating against, firing, or retaliating against employees who take “legally protected absences”. The new law goes into effect on February 19, 2023. In addition to including protections for “legally protected absences”, the law expands on the definition of “threaten[ing], penaliz[ing], or in any other manner discriminat[ing], or retaliat[ing]” against an employee who takes a lawfully protected absence to include the maintenance of what’s commonly referred to as a “no fault” attendance policy, where an employee is subject to discipline for taking off from work, regardless of the reason for the absence, pursuant to a point or demerit system. In other words, even if you don’t immediately punish an employee for taking a lawfully protected absence, docking them pursuant to a point system will be considered retaliatory and/or punitive under the new law.
Violations will expose employers to damages, including $10,000 in penalties for first-time violations, and up to $20,000 for all subsequent violations. If you didn’t review your attendance policies when we first alerted you to this law, what are you waiting for?
New York Expands Employee Breastfeeding Accommodations
Governor Hochul has been busy! A recently signed bill expands accommodations for breastfeeding in the workplace. Effective June 7, 2023, all breastfeeding employees must have access to a private pumping space with access to running water, electricity, and a working space. The space must have a seat for the employee, be separate from a restroom, and if the workplace has access to refrigeration, employees must be able to access the refrigerator to store breast milk. Employers must also adopt a written policy, which has to be given to employees upon hiring and each year thereafter. The notice must also be provided to employees who return to work after the birth of their child – and remember, make sure you do so electronically!
(Now, across the river to Jersey . . .)
New Jersey Joins New York City in Regulating Use of Automated Hiring Tools
New Jersey showed that imitation is the best form of flattery and introduced its own laws regulating the use of automated hiring tools, closely tracking New York City’s latest laws governing the use of artificial intelligence in hiring (bonus New York update: New York City recently announced that it would delay enforcement of its Automated Employment Decision Tools Law from January 1, 2023 to April 15, 2023). Earlier last month, the New Jersey legislature introduced a bill (Assembly Bill 4909) seeking to regulate the use of automated hiring tools and minimize the potential for discrimination. Pursuant to the proposed law, the sale of automated hiring tools would be prohibited unless subject to an independent bias audit in the year prior to selling the tool or offering it for sale. The proposed law also requires that any seller of such a tool provide an annual bias audit service, as well as a notice stating that the tool is subject to the proposed law. Further, anyone who uses an automated tool in screening candidates must notify each candidate within 30 days of the use of the tool that it was used in connection with their application for employment, and that it assessed the job qualifications or characteristics of the candidate. Just something to think about before you start using ChatGPT to assist with your hiring policies.
NJ WARN Act Changes
This has been brewing for some time now, but the long-awaited changes to New Jersey’s Millville Dallas Airmotive Plant Job Loss Notification Act (otherwise known as the NJ WARN Act . . . because its actual name is an eyesore) will finally go into effect on April 10, 2023. The headlines are as such: (a) applies to employers with at least 100 employees; (b) requires at least 90 days’ advance notice for “mass layoffs” or plant closings, with “mass layoff” meaning the termination of at least 50 full or part-time employees; (c) severance must be provided to affected employees in an amount of at least one weeks’ pay per year of service; and (d) the introduction of various penalties for noncompliance, such as an additional four weeks’ severance if proper notice is not provided, as well as claims for lost wages and benefits. If you’re an employer with at least 100 employees and contemplating a mass layoff or plant closing, you’ve been WARNed.
Minimum Wage Increases (Again)
As discussed around this time last year, back in 2019, Governor Murphy signed a law that will gradually increase the State’s minimum wage to $15/hour. Effective January 1, 2023, the minimum wage increased from $13/hour to $14.13/hour for most non-exempt employees, and increased from $11.90/hour to $12.93/hour for seasonal and small employers with fewer than 6 employees.
And for our New York friends (bonus update part deux), effective December 31, 2022, workers outside of New York City, Long Island, and Westchester County will see a minimum wage increase to $14.20/hour. The minimum wage for New York City and Nassau, Suffolk, and Westchester counties stays the same at $15/hour. And speaking of increases, don’t forget that along with minimum wage, the salary threshold for overtime exemptions will increase as well. Hopefully one of your new year’s resolutions was to conduct a pay audit.
(We almost deleted these following Saturday’s game – but here’s a Pennsylvania update . . .)
Philly’s Commuter Benefit Program
As yet another reminder, Philadelphia’s commuter benefit requirements went into effect on December 31, 2022. Pursuant to the updated city code, Philadelphia employers with 50 or more employees will be required to provide commuter benefits to employees who have worked an average of at least 30 hours per week over the past 12 months. Employers must provide: (1) a transportation fringe benefit plan that complies with Internal Revenue Code Section 132(f), under which a covered employee may voluntarily elect pre-tax payroll deductions for qualified transportation expenses; (2) an employer-paid benefit where the employer pays for an employee’s mass transit expenses; or (3) any combination of the two.
If you have 50 or more employees, please make sure you have enacted a commuter benefits policy or risk fines of $150 to $300 per day of non-compliance.
Pennsylvania Joins New Jersey in Expanding Protected Characteristics in its Human Relations Act
Having to rely on the superior craftmanship and drafting abilities of New Jerseyans (we’re not salty, you’re salty), Pennsylvania has taken a page from the Garden State’s book and expanded on its definitions of sex, religious creed, and race in its Human Relations Act. First, the definition of sex was expanded to include characteristics like pregnancy, breastfeeding, sex assigned at birth, gender identity or expression, and differences in sex development. The definition of religious creed includes all aspects of religious observance and practice, as well as sincerely held beliefs, consistent with Title VII of the Civil Rights Act of 1964. And the definition of race also includes ancestry, national origin, ethnic characteristics, interracial marriage or association, traits historically associated with race, persons of Hispanic national origin or ancestry, and persons of any other national origin or ancestry. Better get moving on updating those workplace policies. In other words, expanded protections call for increased compliance measures. We’re starting to see a trend here . . .
Hope 2023 is the best year yet for you! Thank you for reading.