Labor and Employment

Prenatal Leave in NYS According to Labor and Employment Law Attorneys

New York employers, take note. A significant change is coming in 2025 regarding employee leave. New York is the first state in the nation to require employers to provide paid prenatal leave for pregnant workers. While the major points of this legislation are straightforward, the State’s lack of guidance on finer points, like recordkeeping, has the potential to create pitfalls for employers. Because the law becomes affective January 1, 2025, managers should consult a labor and employment law attorney for compliance strategies in the absence of such guidance.

Background: NYS Paid Prenatal Leave

Governor Kathy Hochul signed legislation in April 2024 expanding the New York Paid Family Leave Law (NY PFL) to include 20 hours of paid leave for prenatal doctor appointments within a 52-week calendar period.

The new law is separate from existing sick leave and safe leave provisions. Employees can use this new benefit for a variety of pregnancy-related healthcare services, including:

• Physical examinations
• Medical procedures
• Monitoring and testing
• Discussions with healthcare providers

Key Considerations for Employers

• Eligibility: All pregnant employees, regardless of length of service, are entitled to NYS’ paid prenatal leave benefit.
• Leave Usage: The 20 hours can be used in hourly increments and is paid out in the same manner.
• Employee Rights: Employers cannot retaliate against employees for using prenatal leave. Upon return, they must be restored to their previous position with the same terms and conditions of employment. Unused leave does not need to be paid out at the end of employment.

Current Unknowns and Recommendations

NYS’ paid prenatal law remains silent on some crucial details for employers. Proactive managers will do well to consult with legal counsel and strategize on compliance in the absence of clarification regarding:

• Recordkeeping Requirements: There are currently no regulations on how employers must track this leave.
• Notice Requirements: It’s unclear if employers need to provide specific notification regarding this benefit.
• Poster Requirements: As of this time, no official posters have mandated.
• Timing of Guidance: Although the State has promised to provide guidance on the above points prior to the law’s affective date, no specifics have been given as to when this additional detail can be expected.

Staying Compliant: Consult a Labor and Employment Law Attorney

While the new law offers significant benefits for pregnant employees, employers must adequately prepare for its implementation. Bleakley Platt & Schmidt’s Labor & Employment Law Practice Group can assist you in revising your paid leave policies, ensuring compliance with the upcoming changes and addressing any specific concerns you may have. We anticipate eventual guidance from the State regarding recordkeeping, notice, and potential carryover provisions before the law takes effect.

National Labor Relations Board Decision Places Limits on Severance Agreements

On February 21, 2023, in McLaren Macomb, 372 NLRB No. 58, the National Labor Relations Board held that employers may not offer severance agreements to employees which require these employees “to broadly waive their rights under the National Labor Relations Act [Act].” The McLaren decision involved severance agreements offered to furloughed employees which prohibited them from making any disparaging statements against the employer and from disclosing the terms of the agreement itself.  McLaren now places limits on the use of confidentiality, non-disclosure, and non-disparagement clauses that employers may include in severance agreements. The decision reverses prior NLRB precedent in 2020 which found that similar severance agreements were not unlawful by themselves.

While the Act applies to most private sector employers and the U.S. Postal Services, including those with a non-union workforce, the McLaren decision does not apply to employees who are excluded from the act’s coverage, such as managers and supervisors. Moreover, the decision makes clear that the “free speech” of employees under Section 7 of the Act requires that  “employee critique of employer policy pursuant to the clear right under the act to publicize labor disputes is subject only to the requirement that employees’ communications not be so disloyal, reckless or maliciously untrue to lose the act’s protection.”

Based on the broad language of the McLaren decision, employers should review the language they use in severance and separation agreements and discuss with legal counsel whether that language should be modified, including those non-disparagement and confidentiality clauses found in pre-existing agreements.

Salary Transparency and Legal Ramifications for New York City Businesses

The New York City Council recently passed Local Law 32, a salary transparency law, which amends the New York City Human Rights Law to require employers to list the minimum and maximum salary range when publicizing new positions. The law applies not only when advertising a job in public media, but also in internal postings regarding promotion or transfer opportunities. The effective date of the law, originally slated to go into effect on May 15, 2022, has been delayed by the New York City Council and will now go into effect November 1, 2022. The delay will allow additional time for compliance by companies. Given that employers could face substantial penalties under this new law for non-compliance, the delay should be viewed as an opportunity to assess hiring procedures and make any necessary changes ahead of its implementation.

The new law applies to all companies with four or more employees, where at least one is located in New York City. Independent contractors are included in the count. Temporary staffing agencies are exempted, as they are already required to disclose wages in compliance with the New York Wage Theft Prevention Act. When this new law goes into effect, it will be considered an “unlawful discriminatory practice” under the NYCHRL if a company does not provide the minimum and maximum salary or hourly range for a position. The range of compensation publicized must be what the employer in good faith believes it would pay at the time the information is posted. It’s important for employers to note that for compliance purposes “salary” refers to base annual pay or hourly wages but does not include employee benefits such as insurance coverage, time off from work, or other forms of indirect compensation. To learn more about the law and its status, you can visit the New York City Council website by clicking here. While there are no fines for first-time violators if the issue is corrected to the satisfaction of the New York City Commission on Human Rights within 30 days, employers deemed to have violated the pay transparency law can be subject to civil penalties of up to $250,000.

We strongly recommend that NYC employers take advantage of the additional time and review current job postings to ensure compliance once the law takes effect. Adherence may require updates to internal and external job advertisements.

The New York employment attorneys of our Labor and Employment Practice Group are available for consultation if you have any questions regarding salary information and transparency. To learn more about the services Bleakley Platt & Schmidt’s Labor and Employment Practice Group has to offer, please click here or contact our office at (914) 287-6144.

What Employers Need to Know about New York’s Employee Monitoring Law

In accordance with new Section 52-c of the New York Civil Rights Law, which went into effect on May 7, 2022, New York employers must now notify their employees if they are electronically monitoring workers’ phones, emails, and internet access or usage.  

The new law mandates that all private employers must provide notice of their electronic monitoring practices to new employees upon hiring and obtain written acknowledgement of the monitoring. While employers are not required to obtain written acknowledgement from existing employees, they are required to post the notice in a conspicuous place viewable by all employees.  

The new law applies to any employer with a place of business in New York State, regardless of size, that monitors or intercepts employees’ email, telephone conversations, or internet access or usage. 

Language for the Required Notice: 

There is specific language provided in the new law that employers can utilize as a model to meet the notice requirement: “An employee shall be advised that any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.” 

Enforcement and Potential Fines 

The New York State Attorney General assumes the authority of enforcing the new law by imposing penalties on employers not in compliance. There is no private right of action. Violators are subject to a maximum fine of $500 for the first offense, $2,000 for the second offense, and $3,000 for the third and subsequent violations.  

Potential Steps Employers Should Consider 

With the new electronic monitoring law, New York employers are strongly encouraged to review their current practices to ensure adherence to the new law. While some employers may already provide some form of notice of electronic monitoring, the changes with the new law may require updates to current onboarding processes for new and recently hired employees as well as revisions to existing employment policies.   

Companies should consider the following in order to avoid penalties: (1) review and analyze existing electronic monitoring practices to evaluate whether there are any activities within the scope of the notice requirements; (2) draft notice language that complies with the new law and update company handbooks as well as access or login portals; (3) institute a process for employees that join the company to receive the notice and provide the required acknowledgement as part of new hire paperwork; (3) post a notice for all company employees in a place that is readily viewable for all employees subject to electronic monitoring regardless of hiring date – perhaps on the company’s internal website for remote/hybrid employees and in a common office space for employees on-site; (4) consider implementing a system to collect and store acknowledgement paperwork so that the notice requirement is adequately documented. 

Exceptions 

Employers should note that the new law does have a few important exceptions to existing processes (1) that manage the volume of inbound or outbound emails, voicemails, or internet usage; (2) which are not targeted to monitor or intercept the electronic mail or telephone voicemail or internet usage of a particular individual; and (3) are performed solely for the purpose of computer system maintenance and/or protection. As a result, the law creates a potential gray area for employers who use employee monitoring systems to achieve multiple goals. 

Movement in Other States  

It is important to note that local, state and federal laws govern the scope of an employer’s monitoring of an employee’s activities and whether employers are required to inform employees that they are being monitored and obtain acknowledgement of the same. For example, other states, like Connecticut and Delaware, have also enacted laws to require written notice to employees about electronic monitoring. Connecticut Gen. Stat.§ 31-48d;  Delaware Del. 6 Code § 19-7-705.  After a current employee-related exemption expires in January 2023, the California Consumer Privacy Act will broaden the requirement to provide notice, and grant employees in California the right to request details of private information that has been collected and how it will be used. Recent movement at the New York State level perhaps signals an even greater movement toward transparency in the workplace.  

Importantly, the employee monitoring law in New York and other states should be considered in conjunction with unionized worker’s rights established in the National Labor Relations Act. 

Questions 

If you have any questions regarding the disclosure of electronic monitoring practices, please consult with our Labor and Employment Practice Group. Click here to learn more about the services Bleakley Platt & Schmidt’s Labor and Employment Practice Group has to offer. 

Frequency of Pay Issues for “Manual Workers” Continue to Present Significant Liability Risks for New York Employers

New York Labor Law (NYLL) Section 191 mandates that employers must pay “manual workers” on a weekly basis within seven calendar days of the week during which the wages are earned. If manual workers are not paid on this weekly basis, recent cases continue to confirm that these employees have a private right of action under Section 191 to seek to recover liquidated damages, which are now mandatory under Section 198(1-a) even though the “manual workers” were paid in full the following week.

New York State Wage Theft Prevention Act

Effective April 9, 2011, the New York Wage Theft Prevention Act (“WTPA”) will amend Section 195 of the New York State Labor Law (“Labor Law”) to require that New York employers provide employees hired on or after this date with a written acknowledgment concerning their rates of pay, wage allowances, pay dates, and related matters. The following is a summary of the WTPA’s wage payment reporting and payroll record retention requirements. Employers need to ensure that they are in full compliance with the new wage and hour notice requirements of the Labor Law in order to avoid the imposition of the expanded civil and/or criminal penalties set forth in Sections 197 and 198, also effective on April 9, 2011.

Click here to view the PDF titled ‘New York State Wage Theft Prevention Act’ by Joseph DeGiuseppe, Jr.