Article contributed by Jaclyn K. Ruocco, Esq., Ellenoff Grossman & Schole LLP
New York employers in the hospitality industry are no strangers to the constant proliferation of labor laws they must keep up with in order to avoid substantial penalties and expensive lawsuits.
Now, just as the hustle to comply with COVID-related labor laws calms down, employers should be aware that there are several new requirements and changes to existing New York law that should be addressed.
New York City Employers: Mandatory Posting of Salary Ranges
Effective May 15, 2022, New York City employers with four or more employees must provide a minimum and maximum salary in any advertisement for a job, promotion or transfer opportunity. The required salary range may include the lowest and highest possible salary that the employer believes “in good faith at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.” When counting the number of employees in order to determine if the law applies to your establishment, you must include any independent contractors and family members that work for you.
The purpose of this law is similar to the City’s ban on inquiring into a job candidate’s salary history, so as to promote equal pay among employees and job candidates regardless of race, gender and/or any other protected characteristic under City law. While the law goes into effect later this Spring, there are still many unanswered questions concerning compliance, for example, does it apply to hourly positions, what constitutes an “advertisement”, what is the interplay, if any, with a collective bargaining agreement. As the effective date nears, the City may publish additional guidance that answers some of these questions. Employers should review any job postings with legal counsel to ensure compliance.
All New York State Employers: Expansion of Whistleblower Law
Effective January 26, 2022, New York State significantly expanded its existing whistleblower law, which previously prohibited employers from retaliating against an employee for reporting or threatening to report actual violations of law that present a substantial and specific danger to the public’s health or safety. Now, the law also prohibits retaliation when an employee, former employee or an independent contractor, reports or threatens to report company activity that the individual reasonably believes is in violation of a law (regardless of whether it is an actual violation of the law) or that poses a substantial and specific danger to the public’s health or safety.
Several other changes were made to expand employee protections under this law, including relaxing the requirement that an employee notify the employer so that the employer has a period of time to cure the alleged violation before the law is triggered. Additionally, employers are now required to inform employees of their protections, rights and obligations pursuant to the whistleblower law by posting a notice in the workplace in a “conspicuous, easily accessible and well-lit place customarily frequented by employees and applicants for employment.” A model poster can be found here: https://dol.ny.gov/system/files/documents/2022/02/ls740_1.pdf.
The expansion of the City’s whistleblower law reinforces an employee’s right to complain about workplace issues without fear of retribution. Employers are encouraged to train managers on these anti-retaliation rules in order to avoid unnecessary penalties or lawsuits.
All New York State Employers: New Requirements for Electronic Monitoring of Employees
Effective May 7, 2022, all New York employers that monitor employee email, telephone or internet usage must provide advance written notice to employees who are subject to such monitoring and must post a notice of electronic monitoring in a “conspicuous place which is readily available for viewing” by employees.
The notice must provide 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” may be subject to monitoring “at any and all times by any lawful means.” The notice must also identify the electronic devices or systems that may be subject to monitoring including, but not limited to, “computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems.” Notice must be provided to current employees by the effective date and thereafter for new employees upon their hire date. Employers must maintain written records of acknowledgement of receipt of such notice by employees.
While notice and poster requirements seem trivial in the complicated scheme of New York labor law, violations of these laws can result in significant penalties by the City or State governmental agencies and will certainly be low hanging fruit for plaintiffs’ attorneys to file lawsuits against employers, which can open companies up to broad discovery obligations and expensive protracted litigation.
New York employers are encouraged to consult with labor and employment counsel to ensure company compliance with these new legal requirements.
Jaclyn K. Ruocco is an associate in the Firm’s Labor and Employment Practice Group. Ms. Ruocco represents hospitality companies in all areas of federal, state and local labor and employment law, including traditional labor relations, employment counseling, and employment litigation defense. As part of her practice, Ms. Ruocco has broad experience in negotiating and interpreting labor contracts and separation agreements, conducting management and employee trainings, and devising company policies. Ms. Ruocco can be reached at (212) 370-1300 or [email protected].