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Employees Entitled to Privacy in Personal Online Accounts

Effective March 12, 2024, employers may not request, require, or coerce any applicant or employee to:

  • Disclose their LinkedIn, TikTok, Instagram, Facebook, Twitter, Snapchat, Reddit, etc. (personal online account) username and/or password.
  • Open their personal online account in the employer’s presence.
  • Reproduce, in any way, pictures or videos from their personal online account.

Employers can’t penalize or retaliate against an employee who doesn’t provide access to their personal online account.

Employers can require that employees disclose their username and/or password to access their nonpersonal, employer-provided online account; disclosure protections don’t apply to accounts used by an employee for business purposes. Employers may access login information for work phones they pay for if they give advance notice about the access and the employee agrees to it. Employers can’t access an employee’s personal online account even if it’s on an employer-provided work phone. However, employers can:

  • Restrict or prohibit employee access to certain websites when they’re using the employer’s network or on an employer-provided device, with the advance notice discussed above.
  • Comply with a duty to screen employees or applicants before hiring them, or monitor or retain employee communications when required by law.

Employers can also view, access, and use:

  • Information about an employee or applicant that can be obtained without any access information or is publicly available; and
  • Photos, videos, and messages voluntarily shared by a third party (even if it’s on an employee’s personal online account) when they were voluntarily given access to it by an employee subject to a misconduct report or investigation.

For instance, Diego and Frida chat on Snapchat through their personal online accounts. Diego sends Frida a Snap (a picture) showing him stealing company property. Frida can voluntarily share the Snap with Diego’s employer and the employer is able to use it in a misconduct investigation against Diego.

Wage Payment Law Coverage Expands

Effective March 13, 2024, New York’s wage payment law and its protections will apply to more employees because the exception threshold will increase to $1,300 from $900. The state’s wage payment law creates rights for workers in how and when they’re paid. They don’t apply (an exception) to certain workers (bona fide executive, administrative, or professional employees) who make a set amount of money (the threshold).

Starting in March 2024, bona fide executive, administrative, and professional employees who make up to $1,300 a week cannot be forced into being paid via direct deposit, without providing their advance, written consent (N.Y. Labor Law § 192). Additionally, these employees must also be paid at least semi-monthly, and any owed benefits or wage supplements must be paid within 30 days of them coming due. Benefits or wage supplements include reimbursement for expenses; health, welfare, and retirement benefits; and vacation, separation, or holiday pay (N.Y. Labor Law § 198-C).


Employers Must Give Employees Notice About Their Unemployment Benefit Eligibility

Effective November 13, 2023, employers must give employees written notice about their right to file for unemployment benefits when they’re permanently or temporarily separated, subject to a reduction in hours, or experience any other interruption in their continued work that results in total or partial unemployment. The written notice must include the employer’s name, registration number, and address along with any other information the NY Labor Commissioner requires.

NYC Earned Safe and Sick Time Act Rules Amended

On October 15, 2023, the amended rules for the New York City Earned Safe and Sick Time Act (ESSTA) took effect. They include compliance obligation clarifications and legal changes, such as:

  • Determination of employer-size. Employers must count their total number of employees nationwide, not only in the city, to determine if they’re covered by the ESSTA. They must count their highest total number of employees concurrently employed at any time during the calendar year and include all full- and part-time employees, those who are jointly employed, and those on leave or a temporary absence.
  • Definition of an “employee for hire within NYC.” An employee is “employed for hire within NYC” if they perform work (including telework) while they are physically in the city and regardless of where the employer is located.

The amended rules are vast and impact most of the ESSTA. The city released additional detailed, updated guidance on its NYC’s Paid Safe and Sick Leave Law website to assist employers in their compliance efforts.

Pay Transparency in Job Postings

Effective September 17, 2023, employers in New York State with four or more employees (located anywhere) are required to include the compensation or compensation range for any job, promotion, or transfer opportunity in the job posting. This includes internal postings. Postings must also include a job description, if one exists. These requirements apply even if the job is posted by a third party, like an employment agency or recruiter.

Positions Outside of New York

The compensation and job description posting requirements apply to jobs that will be physically performed in New York (even in part) as well as to positions that are performed outside of New York but report to a supervisor, office, or other worksite in New York.

Good Faith Estimation of Pay

Any compensation range must include a minimum and maximum annual salary or hourly rate and must be provided in good faith, meaning it should be a reasonable estimation of what that particular open position will pay when filled.

As an example, you might pay your administrative assistants anywhere from $35,000 – $150,000 depending on their level of experience and responsibility. If you know you’re looking to fill the currently open administrative assistant position with someone less experienced (and therefore less expensive), you should advertise the range you believe you’ll actually hire in, e.g., $35,000 – $50,000, rather than advertising $35,000 – $150,000. Aside from the fact that this is required for legal compliance, it will benefit you by preventing people from applying who ultimately wouldn’t accept your offer.

If a position is paid on commission only, an employer can comply by stating in the job posting that compensation will be based on commission.

Intellectual Property Rights Clarified

Effective September 15, 2023, New York law clarified employees’ intellectual property rights by rendering any employment agreement unenforceable if it requires employees to assign their rights (to their employer) for the inventions they developed using their own property and time. The law exempts intellectual property created with actual or demonstrably anticipated research of the employer, or from work performed by the employee in the course of their work for the employer.

According to the legislative justification clause, “Overly broad contracts can rob employees of their intellectual property (IP). Research has shown that stronger IP protections for workers both protect employees’ and increase incentives for innovation. Moreover, economists have linked better IP protection for employees to more efficient firms and increased economic growth. The reasons are clear; these clauses prevent employees from trying new ideas that can one day turn into new businesses. Other employees leave for jurisdictions with these protections, like California. California implemented this protection in 2011, and it has not impeded the growth of its tech sector. This law brings overdue protections to New Yorkers.”

New York Limits Captive Audience Meetings

As of September 6, 2023, employers can’t refuse to hire, discharge, or otherwise discriminate against an employee because they refuse to attend an employer-sponsored meeting, listen to speech, or view communications if the primary purpose is to express the employer’s religious or political opinion.

This law defines matters as religious if they relate to religious affiliation and practice as well as the decision to join or support any religious organization or association. Matters are considered political if they relate to any of the following:

  • Elections for political office
  • Political parties
  • Legislation or regulation
  • The decision to join or support any political party or political, civic, community, fraternal, or labor organization

Notably, this law prevents employers from coercing employees to attend “captive audience meetings,” where the employer presents their views on unionization or labor organizing.

The law contains several exceptions. It doesn’t apply to meetings or communications that are only for managers and supervisors. It also doesn’t apply to legally required communications, those necessary for employees to perform their job duties, and voluntary casual conversations. For employers in higher education, it doesn’t prohibit meetings or communications that are part of coursework or an academic program. Finally, the ban on religious communications doesn’t apply to religious organizations.

Employers are required to post a notice to employees about these rights in the workplace where notices to employees are typically posted.

Gender Identity or Expression Added as a Protected Class for Interns

Effective August 23, 2023, the New York Human Rights Law (NYHRL) protections for interns expanded to protect them from discrimination and harassment based on their gender identity or expression. Under the NYHRL, interns are defined as workers who perform work for an employer for training purposes, that are not required to be hired when they’re done with training, and are unpaid. Importantly, interns and employees who work only during the summer are not the same type of worker. Employees—regardless of the time of year they’re hired—must be paid by their employer for the work they perform.

Required Human Trafficking Awareness Training for Lodging Facilities

Effective July 20, 2023, every lodging facility must require all its employees who are likely to interact or come into contact with guests to undergo a human trafficking recognition training. A state, federal, or nonprofit organization will develop the training, which lodging facilities can incorporate into their existing training programs. However, it can also be provided by another organization as long as it is legally compliant and approved by the state.

Training may be given through in-person instruction, electronic and video communication, or online programs and must address:

  • The nature of human trafficking;
  • How it’s legally defined and how to identify its victims; and
  • Contact information, like the National Human Trafficking Hotline, which connects victims of human trafficking to relief options, recovery options, social services, and legal services.

The state will immediately provide a list of online programs that lodging facilities can use for training. The training must:

  • Be completed within the first 60 days of work for new employees; and
  • Take place on the lodging facility’s premises and be considered compensable time.

Lodging facilities must keep on-premises records—for the duration of employment plus a year—for each employee who was trained.

NYS WARN Act Updated

Effective June 21, 2023, the New York State Worker Adjustment and Retraining Notification Act (NYS WARN Act) regulations were modified to:

  • Include employees who work remotely—but are based at the employer’s worksite—as part of the employee count threshold. Employers with 50 employees are covered by the act.
  • Include a differentiation between a temporary and permanent layoff. Temporary layoffs are mass layoffs that are less than six consecutive months with a plan that the employees will return after it ends. Temporary layoffs don’t trigger WARN notice requirements. Alternatively, permanent layoffs do trigger WARN notice requirements—employers must provide them when the employment loss starts—and are defined as mass layoffs that are longer than six consecutive months.
  • Impose a notice requirement on purchasing employers that fail to transfer employees to work for them when it’s required under the sale agreement once the business sells.
  • Add content and specifics (i.e., business address, telephone numbers, email addresses) to the WARN notice and provide it to the New York State Department of Labor (NYSDOL) and affected employees.
  • Expand exceptions to when the mass layoff notice must be given. However, employers must still provide as much notice as possible, even if it’s late, and include a statement about why it wasn’t on time.
  • Include provisions about payments in lieu of separation or layoff notice.

Nursing Employees’ Breastfeeding Rights Expanded

Effective June 7, 2023, breastfeeding employees can use unpaid or paid time to express breast milk each time they need to, and employers must provide them with a designated location to do so. This lactation location must be close to where the employee works, well lit, shielded from view, and free from intrusion by others. It must also have a chair, working surface, access to clean running water, an electrical outlet, and not be a restroom or toilet stall.

The law also:

  • Requires refrigeration, if available at the workplace, for storing breast milk.
  • Requires notice to employees when the lactation location is ready for their use.
  • Provides an undue hardship exception (not exemption) for certain employers.
  • Prohibits retaliation or discrimination against employees for exercising their rights.

The New York Labor Commissioner will develop a written policy about the rights of nursing employees to express breast milk in the workplace and employers must provide it upon hire to each employee, annually, and when an employee returns to work after childbirth. The notice will inform employees about their rights, describe how they request a lactation location, and employers are required to respond to the request within five business days.

NYDOL Model Sexual Harassment Policy & Prevention Content

In April 2023, the New York State Department of Labor (NYDOL) finalized changes to its Sexual Harassment Model Policy, which is a template employers can use to comply with the requirement that all employers in the state have a sexual harassment prevention policy. Employers that don’t use the model policy must ensure that whatever policy they use meets or exceeds the state’s minimum standards.

In May 2023, the department also released a new interactive training video along with online resources to help employers and employees understand and comply with the newly enhanced policy and mandatory training requirements.

Employers Cannot Retaliate for Lawful Absences

Effective February 19, 2023, employers cannot punish or discipline their employees for their lawful absences. For instance, employers cannot assess a demerit against an employee—when they are lawfully absent—that subjects them to discipline, which may include denial of promotion or pay loss.

Warehouse Worker Protections Enacted

Effective February 19, 2023, the New York Warehouse Worker Protection Act:

  • Protects warehouse workers from unreasonably demanding work quotas;
  • Requires distribution centers to disclose work speed data to all employees so they know how they are performing in relation to their assigned work quota; and
  • Protects workers from adverse employment actions, like discipline or termination, because they failed to meet undisclosed speed quotes or quotas that don’t allow for proper breaks.

Mandatory Veterans’ Benefits Notice

Effective January 1, 2023, all New York State employers with more than 50 employees are required to display a new Veterans’ Benefits & Services poster in an area accessible to all employees in the workplace. The poster provides information on how to access several veteran resources, including mental health and substance abuse assistance, training and workforce services, tax benefits, legal resources, and more.

HR Consulting Team, HR Services
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