NEW YORK Law Alert September 2023

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, which has not been updated online yet, 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.

Intellectual Property Rights Clarified

Effective September 15, 2023, New York law clarifies 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 Requires Pay Transparency in Job Postings: Compliance Reminder

Beginning September 17, 2023, employers in New York State with four or more employees (located anywhere) will be 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.

Action Item

New York City has had a similar ordinance in effect since last November (minus the job description aspect), which has likely inspired or required many New York employers to adjust their practices by now. If you haven’t done so, prepare to start including compensation information and job descriptions in job postings by September 17.

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) take 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. However, the requirement that an employee must work more than 80 hours per calendar year in New York City to be covered by ESSTA was removed.
Elimination of the waiting period. The 120-day waiting period to use safe/sick time was removed.

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.

Action Items